“Discontinuity Between Pre- and Post-Divorce Father-Child Relationships:
New Evidence Regarding Paternal Disengagement”
By Prof. Edward Kruk (1992)
If Shared Parenting is high on the Political Agenda, is endlessly discussed in academic circles, and is the common currency across the Western World it is in no small measure due to trail-blazers and pioneers like Edward Kruk featured here. Even this, a 1992 paper, was far ahead of its time and for that reason is included in this blog of what can happen all too often to children of divorce. Ten years ago when it was written the mind-set was very much narrower and much more subject to political correctness than the present day. It would have been received as something akin to heresy compared to the ‘conventional wisdom’ of the day.
The 1990’s were a time when the ‘intelligentsia’ sold society short: they were convinced that in the raising of a child there was not need for a man – he was redundant; “A woman could do it all perfectly well – if not better all alone !” That is now a myth lying shattered into a thousand pieces – with millions of juveniles, and our prisons, to prove the very opposite. Here, arguably for the first time in research delving into the effects of divorce on couples and children, we have the missing piece – “father-centred” research.
Here, in this one diagram [below] is perhaps epitomised the crux of the argument, the distillation of the grief and grievous treatment fathers feel they personify.
“Discontinuity Between Pre- and Post-Divorce Father-Child Relationships:
New Evidence Regarding Paternal Disengagement”
Through a systematic analysis of the link between pre- and post-divorce father-child relationships, this paper examines the issue of non-custodial fathers’ loss of contact with their children and families after divorce. A cross-national survey of 80 non-custodial fathers revealed a striking discontinuity between father-child relationships before and after divorce, with those fathers most involved with and attached to their children during the marriage being most likely to lose contact after divorce, and those relatively less involved and attached more likely to remain in contact. Where the pre-divorce father-child relationship was intense, the consequences of divorce and fathers’ adaptation to these consequences are likely to be highly problematic. The case is made that non-custodial fathers’ disengagement from their children’s lives after divorce results from a combination of structural constraints and fathers’ own psychological response to the absence of their children and loss of the pre- divorce father-child relationship.
Current fatherhood research suggests that despite varying levels of actual child care involvement among fathers, generally speaking, fathers’ emotional investment in their children prevails over other  aspects of their lives (Cohen, 1987), and fathers’ attachment bonds with their children can no longer be regarded as secondary (Lamb, 1976; Rutter, 1972). It is thus likely that fathers experience significant emotional hardship during the time of divorce and after, particularly if they had been previously highly involved with and attached to their children and, as non-custodial parents, are forced to adapt to a “visiting” relationship with their children.
For non-custodial fathers, a particularly ominous consequence of divorce is the possible loss of one’s children. In fact, the stability of continued and frequent contact rarely occurs between these fathers and their children; the disengagement of non-custodial fathers from the lives of their children is a widespread and well documented phenomenon. In a representative sample of children aged 11 to 16, it was found that in 52% of cases, children’s last contact with their fathers had been one or more years prior; only one-third saw their fathers on a monthly basis or more (Furstenberg et al., 1983). The disengagement process typically begins soon after the parental separation and gradually increases, most sharply at about 12 months post-separation (Hetherington et al., 1976); between 25-30% of children lose contact in this first year (Mitchell, 1985).
In an effort to gain a better understanding of the disengagement phenomenon, the present study undertook an examination of the link between pre- and post-divorce father-child relationships, comparing those non-custodial fathers who had lost all contact with their children (“disengaged” fathers) with those who managed to maintain the relationship (“contact” fathers). The following questions comprise our focus:
- What are some of the characteristics of the “now-contact” versus “now-disengaged” subgroups in regard to the father-child relationship before divorce; i.e., fathers’ participation and involvement in child care and child rearing functions, level of emotional attachment between fathers and children, and fathers’ actual influence in various areas of their children’s lives?
- What are some of the characteristics of the “contact” versus “disengaged” subgroups in regard to the father-child relationship during the process of divorce?
- What are some of the characteristics of the “now-contact” versus “now-disengaged” subgroups in regard to the father-child relationship before divorce; i.e., fathers’ participation and involvement in child care and child rearing functions, level of emotional attachment between fathers and children, and fathers’ actual influence in various areas of their children’s lives?
- What are the characteristics of the “contact” versus “disengaged” subgroups in regard to the father-child relationship after divorce?
- What factors contribute to non-custodial fathers maintaining contact with their children after divorce?
- What factors contribute to the disengagement of non-custodial fathers after divorce?
To date, the issue of non-custodial fathers’ contact with or disengagement from their children has not been empirically or systematically examined. It is commonly assumed, however, that post-divorce father-child relationships will largely reflect those previously existing within the marriage. That is, those fathers enjoying a comparatively active role with their children before the divorce will want to maintain, and will strive to continue, such a role after divorce — and hence are the group most likely to have on-going (post-divorce) contact. Such fathers are more likely to form strong attachment bonds which they will actively seek to preserve. Conversely, it is expected that those fathers who locate themselves on the periphery of their children’s lives before the divorce will be the group most likely to lose contact; they will become the “disengaged” fathers.
The assumption that the father-child relationship will, generally speaking, be continuous in the post-divorce period with that which had obtained during the marriage is in accord with prevailing “common-sense” notions as well as with psychological theory. Wallerstein and Kelly (1980), however, in looking at the patterns of contact between non-custodial fathers and their children, discovered that the relation between pre- and post-divorce patterns was surprisingly varied: the way in which a non-custodial father managed to define his post-divorce parenting role was not necessarily correlated with the nature of his pre-divorce role. Eighteen months after divorce (separation), there was no correlation between the visiting patterns that had emerged and the pre-divorce father-child relationship (Wallerstein and Kelly, 1980).
Contrary to “common-sense” assumptions, the authors found no differences between those non-custodial fathers who remained in contact and those who disengaged from their children’s lives in the level of their involvement with and attachment to their children before the divorce. In a five-year follow-up, they continued to find no correlation between the closeness in father-child relationships before and after divorce: 25% of the fathers in their study grew more distant from their children in the space of five years, but another 25% actually grew closer.
Wallerstein and Kelly, however, drew their sample from a clinical population of parents and their children, and provided a counselling service aimed partly at ensuring on-going contact between fathers and their children. In comparing the two sub-groups of ‘contact’ and ‘disengaged’ fathers, one of our objectives was to examine whether pre- and post-divorce father-child relationship patterns are similar to those identified by Wallerstein and Kelly, or whether they tend to conform to the “common-sense” formulation.
The study utilized a survey research design, employing an eight-part questionnaire administered in the context of a personal inter¬view, with a total sample of 80 non-custodial divorced fathers of 128 children, 40 residing in Scotland and 40 in Canada, half of whom, at the time of the survey, had ongoing and regular contact with their children and half of whom were disengaged from their children’s lives. To control for variation within the sample, the fol¬lowing eligibility criteria were established: no more than two children in the family, the elder child being under 16 years of age at interview, and the father having neither physical nor legal custody of the child(ren) of the marriage. In each case the children lived with their mothers, who retained physical and in most cases legal custody.
It was felt that the use of court records to generate a sample would result in the most representative cross-section of such men. Approval of access to court records in Scotland, however, was not forthcoming, and there we were obliged to adopt the second-best strategy of attempting to recruit fathers from a variety of sources, primarily by means of advertizing in the local press. In Canada, it was decided to retain court records as the basis for generating the most representative sample possible. The Scottish and Canadian samples, when compared, were almost identical demographically, a gratifying result given the different sampling procedures used and the reliance on non-random sampling in Scotland.
Data Collection and Measures
The interview proceeded from an initial focus on demographic information and family history to an increasingly open-ended exploration of various psychological and structural aspects of the divorce and post-divorce experience. For many fathers, this represented the first opportunity to discuss their feelings and experiences related to the divorce in a detailed and thoughtful way; on the average, the interviews lasted between two and two and one-half hours, the shortest being one hour, the longest three hours.
Each of the interviews began by obtaining demographic data about the father and the pre- and post-divorce family. Descriptive data about the pre-divorce father-child relationship, including the father’s involvement with and attachment to his children, was then sought, as well as information concerning the father’s perception of the marriage and his previous “father” role, details about the transition period during divorce and the father’s feelings and experiences during this time, information regarding the legal aspects of the divorce, including custody, access and financial determinations, and the father’s experiences with the legal system, as well as with any other sources of help sought, details about various aspects of the post-divorce experience, with an emphasis on the changing father-child relationship, data about the physical and mental health effects of the divorce on the respondent, as well as repercussions on his employment, data about changes in the “father” role before and after divorce, designed to measure (by means of a Likert-type scale) the father’s perception of any change in ten areas of influence which comprise the “father” role,1 and further details about both the positive and negative aspects of the father-child relationship after divorce.
Our dependent variable – paternal post-divorce contact with children – was determined according to the level of contact the father currently had with his children: fathers who had at least one direct physical contact with their children in the month prior to the time of the interview were classified as “contact” fathers; those who had no direct physical contact with their children in the month prior were considered to be “disengaged.” Although the actual levels of father-child contact in the “contact” group of fathers varied from once a month to several visits per week, most of these fathers saw their children on a once-weekly or bi-monthly basis during weekend access periods. None of the disengaged fathers had in fact seen their children for at least three months preceding the interview; most had lost contact over a year prior.
The study was based on the perspective of non-custodial fathers only; their wives or children were not interviewed to corroborate the data obtained. In light of the lacuna in the literature vis-à-vis the non-custodial and disengaged father, however, a case may be made for the validity and value of such “father-centred” research. There is a considerable body of research concerning the impact of divorce on mothers and children, and the findings of this study may be compared to this existing research; further, to study non-custodial fatherhood and disengagement necessitates a beginning focus on non-custodial fathers’ self-reports of those phenomena, and a perception of their testimony as valid for its own sake.
The 80 fathers in the study spanned the range of occupational categories. Their mean age at the date of the survey was 39 years 3 months, ranging from 24 to 56. The former marriage was the first for 69 of the men; 11 had been remarried. The mean length of the marriage to separation was 8 years 3 months, ranging from 4 months to 24 years. Of the 80 separated fathers, 39 were legally divorced; 9 of these had remarried since the divorce. The mean length of the separation at the time of the interview was 3 years 4 months, ranging from 3 months to 6 years 11 months. For the 39 legally divorced fathers, the mean length of the divorce at the time of the interview was 1 year 10 months, ranging from 1 month to 5 years 7 months. For the 9 fathers who were now remarried, the mean length of the remarriage was 2 years 3 months, ranging from 1 month to 5 years.
In 54 (68%) of the 80 cases, the wife initiated the separation, the husband did so in 18 (23%) and there was a mutual decision in 8 (10%) instances. In 28 (72%) of the 39 legal divorces, the wife was the petitioner, the husband in 11 (28%). In half of the divorces where the wife was the petitioner, the respondent indicated that he wanted the divorce, in contrast to an overwhelming number of men (89%) who had not wanted the separation to occur when their wives had been the initiators.
The children of the former marriage ranged in age from one to 15 years (at interview), with a fairly equal distribution for each year of age. Thirty-two of the fathers had one child and 48 had two chil¬dren: of the 80 older or only children, 42 (52%) were female and 38 (48%) were male; of the 48 younger children, 25 (52%) were fe¬male and 23 (48%) were male.
Wallerstein and Kelly (1980) found little association between the closeness of father-child relationships before and after divorce: the nature and extent of a non-custodial father’s pre-divorce parenting role did not necessarily translate itself to the post-divorce situation. Our finding regarding the link between pre- and post-divorce father- child relationships stands in contrast to that of Wallerstein and Kelly, yet diverges even further from what “common-sense” no¬tions lead us to assume: rather than there being no correlation be¬tween pre- and post-divorce father-child relationship patterns, there appears to be a strong inverse relationship; that is, those fathers describing themselves as having been highly involved with and attached to their children during the marriage were more likely to lose contact with their children after divorce, whereas those originally on the periphery of their children’s lives were more likely to remain in contact. There are thus two major subgroups of non-custodial fathers and for each the outcome of divorce in terms of their direct involvement with their children appears to be diametrically opposed to pre-divorce patterns.
The reliability of this largely unexpected finding warrants examination, particularly in light of the self-report and retrospective nature of the study. It was suspected that now-disengaged fathers’ high reported levels of pre-divorce involvement with, attachment to, and influence on their children may be largely an artifact of recall: the importance of interaction with one’s children may be heightened by separation from and loss of contact with them, and disengaged fathers in particular may tend to embellish the former relationship. Corroborative data from other members of the divorced family was not available, and we had no direct access to information about the former father-child relationship, other than that given to us solely by the fathers themselves and solely by their recollection.
It was noted, however, that the aggregate reported rates of pre- divorce paternal involvement, attachment, and influence (from the entire sample of non-custodial fathers, contact and disengaged) fell well within the range of existing studies of the paternal role in the two-parent family. Kamo (1988) reports that on the average hus¬bands in the U.S. carry 36% of the total domestic workload (domes¬tic tasks plus child care), which increases to 41% when both spouses are employed full-time and to 43% when both earn approximately the same amount of money; in Britain, Martin and Roberts (1984) found that while 44% of married women working full-time said they shared overall family work (domestic tasks plus child care), 67% saw child care as shared. Our overall mean levels of paternal participation in a range of infant care tasks, for example (ranging from 24 to 46% —relative to wives’ involvement), are well within the range of these and other studies (40% in Warner, 1986, and 27% in Berk, 1985). Further, fathers’ involvement with, and at¬tachment to and influence on their children before the divorce were measured by means of a number of discrete indices; multiple measures relevant to the same dimension were used, and on each of these, disengaged fathers consistently reported significantly higher levels than contact fathers. In addition, several questions relating to attitudes and ideologies regarding gender roles in the family were included; these corresponded to reported rates of involvement, attachment and influence.
In regard to their level of involvement in a variety of infant care tasks, significant differences were observed between contact and disengaged fathers in reported rates of playing with the baby, lull¬ing the baby to sleep, and taking the baby for a walk, with disengaged fathers indicating higher rates of participation (all ρ < .Ol),2 as well as in taking the baby to the doctor and looking after him or her when he or she was ill (p < .05). There were also significant differences in the reported amount of contact with children in the year before the divorce (p < .05): while contact fathers spent an average of 12 hours per week with their children alone and 16 hours with others present, disengaged fathers spent 20 hours alone and 20 hours with others.
In addition to fathers’ reports of their behaviour vis-à-vis their children within the marriage, their level of emotional attachment was measured. While fathers generally reported high levels of at¬tachment, here too significant differences emerged between the contact and disengaged sub-groups. Disengaged fathers reported “very strong” attachment to their children to a significantly greater degree than did contact fathers, who more frequently reported “strong” and “moderate” attachment (p < .05). This pattern was reflected in fathers’ self-ratings on a number of attachment indices (thinking about children, wanting to be with children when not with them, comforting children when in distress, and discussing feelings with children): disengaged fathers reported significantly higher levels (p < .01). With respect to role attachment, almost all (38 of 40) disengaged fathers found their family role to be the most satisfying during the marriage, whereas only just over half (22 of 40) of con¬tact fathers did so, with 18 of 40 contact fathers indicating a primary attachment to their work or other (non-family) roles (p < .001).
28 of 40 contact fathers exhibited the following:
26 of 40 disengaged fathers exhibited the following:
|Paternal involvement in infant care tasks||Scored within lower half of mean levels||Scored within the upper half of mean levels|
|Paternal involvement in four traditionally “female” domestic tasks (laundry, cooking family meals, cleaning house, and shopping), and in four traditionally “male” tasks (household repairs, earning money, taking out rubbish, and family money management)||Scored within lower half of mean levels in four traditionally “female” tasks and upper half of mean levels in four traditionally “male” tasks||Scored within upper half of mean levels in four traditionally “female” tasks|
|Weekly contact with children in the year before the divorce||Scored lower than mean of 15.3 hours alone with children and 18.2 hours with others||Scored higher than mean both alone with children and with others|
|Emotional attachment to children before divorce||More likely to be reported as less then “very strong”||More likely to be reported as “very strong”|
|Attachment behaviours (thinking about children when not with them, wanting to be with children when not with them, comforting children when ill and reassuring them when in distress, and talking with children about feelings)||More likely to be reported as less then “very often”||More likely to be reported as “very often”|
|Role satisfaction during marriage||Less likely to be reported as family- or child-oriented (and more likely to be non- family or child-oriented)||More likely to be reported as family- or child-oriented (and less likely to be non- family or child-oriented)|
|Paternal influence in ten areas of children’s growth and development before the divorce||Scored within lower half of mean levels||Scored within upper half of mean levels|
|Definitions of “fathering” and “mothering” roles||More likely to be “traditional” in orientation/ greater likelihood of differentiation of gender roles in the family||More likely to be “non- traditional” in orientation/ no differentiation of gender roles in the family|
|Attitudes toward solicitors and/ or the judicial system||More likely to be reported as positive||Reported as negative|
|Satisfaction with legal custody and access and children’s di? /Su? in living arrangement||More likely to be reported as satisfied||Reported as dissatisfied|
|Desired (at least partial) physical custody of children at time of divorce||Less likely to be reported as desired||Reported as desired|
|Desired levels of (present) post-divorce contact with children||More likely to be reported as less than “a tot more”||Reported as “a lot more”|
|(Present) post-divorce contact with ex-wife||More likely to be reported as better than “very unfriendly “||Reported as “unfriendly ” or “non-existent”|
|Ex-wife’s encouragement of post-divorce paternal contact with children||More likely to be reported as encouraging||Reported as discouraging|
|Evaluation of (present) post-divorce parenting abilities||Reported as positive or improvement in parenting abilities after divorce||More likely to be reported as negative|
|Paternal influence in ten areas of children’s growth and development after divorce||Scored within upper half of mean levels/ minimal or no loss of paternal influence from before to after divorce more likely to be reported||Scored within lower half of mean levels/ significant loss of paternal influence from before to after divorce more likely to be reported|
|Negative effects of “visiting” on fathers||More likely to be reported as minimal or non-existent||Reported as significant|
|Negative effects of “visiting ” on children||More likely to be reported as minimal or non-existent||Reported as significant|
|Negative effects of child absence||More likely to be reported as minimal or non-existent||Reported as significant|
|Negative effects of father absence||More likely to be reported as minimal or non-existent||Reported as significant|
|Negative effects of divorce on children||More likely to be reported as minimal or non-existent||Reported as significant|
Paternal influence in various areas of children’s growth and development before the divorce was also measured. In 9 of the 10 areas examined, disengaged fathers reported significantly higher levels of influence than contact fathers; differences between the two groups emerged in the areas of routine daily care and safety of children, personality development, intellectual development, physical development, and moral development (all ρ < .01), in addition to giving children a feeling of being part of a family, teaching behaviour and social skills, emotional development, and religious development (all ρ < .05). There were no significant differences be¬tween the two groups in their pre-divorce influence on the financial affairs of their children.
Markedly different perceptions emerged between contact and dis-engaged fathers in relation to attitudes toward gender role division in the family, fathers’ reported strengths and weaknesses as parents during the marriage, and definitions of “fathering,” “mothering” and “family life.” Whereas contact fathers’ responses were divided between “traditional” and “androgynous” orientations to gender roles and division of labour within the family, the great majority of disengaged fathers tended toward an “androgynous” stance, ex¬pressing sentiments favouring an egalitarian division of family work. When asked directly about gender role division within the family (“Would you say that there is a fundamental difference in roles between the father and the mother in the family? What would you say are the major differences?”), clear differences emerged between contact and disengaged fathers (Table 1).
The following typifies contact fathers’ description of their pre-divorce fathering role:
“My marriage was a traditional one in relation to roles. That’s changed for me since the separation, and I’m coping. But in the marriage I was the provider and she was looking after the house and the children —it was very clear-cut.”
Disengaged fathers marked out a very different scenario. These fathers described being emotionally connected to their children in strong and intimate ways, defining their “fathering” role as a central component of their identity:
“Definitions of fathering vary tremendously but I personally would equate it with parenting: a complete commitment to one’s child, the major responsibility in one’s life, a combination of nurturance, encouraging autonomy and initiative within prescribed limits. It’s setting the stage to allow a child to grow and develop his potential to the maximum.
It’s a way of living—getting up with your children, eating with them, doing work together, reading with them, hugging them, putting them to sleep, dealing with their fears, and enjoying their pleasures — living with them.”
Factors During Divorce
In addition to markedly different patterns between contact and disengaged fathers with respect to the pre-divorce father-child relationship, differences were also evident between the two groups regarding patterns and experiences during the process of divorce. Immediately following the parental separation, involvement with legal practitioners and the legal system was identified as a highly salient component of non-custodial fathers’ experiences, and a number of important differences emerged between contact and disengaged fathers in terms of the legal aspects of the divorce.
There was no significant difference between contact and disengaged fathers in their pattern of contesting child custody in court: of the 15 contesting fathers, 9 remained in contact with their children and 6 became disengaged. There was no relationship between paternal contact and spousal disagreement over the issue of custody at the time of the divorce, nor was there any difference between the two groups in terms of desired legal (paternal or joint) custody of the children. There was a difference, however, in relation to desired physical custody of the children at the time of the divorce (p < .05), with disengaged fathers expressing a desire for at least partial physical custody with greater frequency than contact fathers; a startling 88% of now-disengaged fathers indicated that they had wanted, at the time of the divorce, to have their children live with them at least part of the time. Further, when asked about their desired level of contact with their children after divorce, disengaged fathers expressed a wish for increased levels with much greater frequency than contact fathers (p < .001). Thus from the point of divorce, at which time they report a greater desire for at least partial physical custody, now-disengaged fathers’ requirements for post-divorce contact with their children appear to be greater than those of now- contact fathers.
The discrepancy between disengaged fathers’ initial desires in regard to child custody and access and the actual post-divorce arrangements made is striking. Clearly, those fathers who legally disputed custody did not constitute all of those who wanted custody of their children; there appear to be powerful factors mediating between fathers’ stated desires at the time of divorce and the final outcome of paternal non-custody, and between these desires and fathers’ subsequent inaction vis-à-vis pursuit of custody. Fathers described the role of legal practitioners as crucial in transforming their aspirations regarding what could be achieved through the legal system; lawyers assumed a key role in persuading fathers not to pursue custody, or lessening their aspirations concerning their level of post-divorce contact with their children. In 55% of cases, lawyers actively discouraged fathers from pursuing custody; only 12% agreed with or encouraged it. In contrast, lawyers encouraged the pursuit of legal access arrangements; in this regard, fathers were often told that a “reasonable” level of access was the “customary” pattern of bi-monthly visitation.
There were significant differences between contact and disengaged fathers in their satisfaction with the legal maternal custody arrangement, with 12 of the 14 fathers satisfied with the legal arrangement being contact fathers, and 33 of the 51 dissatisfied being disengaged (p < .01). There were also differences in relation to fathers’ reasons for dissatisfaction with the legal maternal custody arrangement, with legal maternal custody determinations often cited by disengaged fathers as responsible for their loss of contact with their children (see Table 2).
Not surprisingly, as with legal custody, there were significant differences between contact and disengaged fathers in their reported satisfaction with the legal access arrangement, with all 10 of the fathers satisfied with the arrangement being contact fathers, and 29 of the 47 dissatisfied being disengaged from their children (p < .001).5 In contrast, there were no differences between the two groups in regard to their satisfaction with legal post-divorce financial arrangements (property settlement and support payments), or any aspects of the legal financial arrangement.
Interestingly, in relation to custody and access, there was no association between the type of advice fathers received from their lawyers and subsequent paternal contact. There were no differences between contact and disengaged fathers in their lawyers’ encouragement/discouragement of paternal or joint custody or their suggestions as to how to pursue access. Fathers’ overall ratings of lawyers vis-à-vis helping or hindering their subsequent relationship with their children, and of the judicial system in relation to its appropriateness as a forum for determining child custody and access arrangements, however, differed significantly between the two groups.
Those fathers reporting that legal practitioners had helped, both helped and hindered, or had no effect on the ongoing father-child relationship were more likely to be contact fathers (18 of 23 fathers), while a greater proportion of disengaged fathers stated that their lawyers had in some way hindered the relationship (31 of 52; ρ < .05). Although the great majority of both contact and disengaged fathers perceived the judicial system to be an inappropriate forum for determining child custody and access, all 6 of the fathers considering judicial resolution to be appropriate were contact fathers. While a high percentage of contact fathers reported satisfaction with the fairness of the court hearing regarding custody and/or access, almost all disengaged fathers reported strong dissatisfaction (p < .05).
One of the major repercussions of a judicial mode of determining post-divorce custody and access arrangements, according to both contact and disengaged fathers, is that the prevailing “adversarial” approach of legal practitioners and the legal system serves to enhance or create an atmosphere of distrust and antagonism between the former spouses. Quite revealing in this context was the fact that while no differences emerged between contact and disengaged fathers in the reported level of conflict between the parents at the time of divorce (separation), there was a strong relationship between paternal contact and reported post-divorce conflict between the parents. That is, there were no differences between contact and disengaged fathers as to whether a calm or turbulent atmosphere existed at the time of the divorce (before any major legal involvement of the parties); the differences between the two groups emerged only after legal processes had made their impact. While 39 of 40 disengaged fathers assessed their post-divorce relationship with their former spouses as unfriendly or non-existent, only 14 of the 40 contact fathers did so; 26 of the contact fathers described the post-divorce contact between the ex-spouses concerning their children as friendly or “middling” (p < .001).
For the majority (34 of 40) of disengaged fathers, contact with their ex-wives was reported as “non-existent.” For non-custodial fathers, discontinued contact with the former spouse clearly does not bode well for ongoing contact with one’s children: only 6 fathers had been able to maintain their relationship with their children while having no contact with their ex-wives. Paternal contact was strongly related to former wives’ encouragement/discouragement of fathers’ contact with their children after divorce, with all 40 disengaged fathers indicating that their ex-wives had actively discouraged contact, compared with only 14 contact fathers (p < .001); for the majority of fathers, some level of encouragement on the part of their former spouses was necessary to facilitate ongoing contact with their children. There were also differences between contact and disengaged fathers in the ways their ex-wives had discouraged post-divorce father-child contact, with outright refusal of access being dominant in the case of disengaged fathers.
In sum, marked differences exist between contact and disengaged fathers not only in regard to their experiences with lawyers and the judicial system, but also in their subsequent relationship patterns with their former spouses. These two related factors are critical in determining the consequences of divorce for fathers; that is, the actual boundaries of the post-divorce father-child relationship or the extent of child absence.
Factors After Divorce
Fathers’ adaptations to the consequences of divorce also influence the nature and extent of post-divorce father-child relationships. While non-custodial fathers’ level of contact with their children is constrained by legal access restrictions and what the custodial mother will allow, the strain of child absence is particularly pronounced for disengaged fathers, a reflection of the intensity of their involvement with and attachment to their children before divorce. Disengaged fathers deeply yearn for the children with whom they are no longer in contact; all 40 disengaged fathers indicated a desire for “a lot more” contact with their children, and the great majority presented as far from having come to any resolution of the grief connected to the absence of their children and loss of the pre-divorce paternal role.
Significant differences emerged between contact and disengaged fathers in the frequency, intensity and duration of physical and mental health problems resulting from the divorce (p < .01). The majority of disengaged fathers experienced stress severe enough to result in the development of new physical and mental health problems: 28 (of 40) disengaged fathers developed physical symptoms, and 32 experienced mental health difficulties after divorce; the majority of contact fathers reported no new physical or mental health problems. Disengaged fathers also indicated a significantly higher level of negative effects on their work or career (p < .01).
Although the effects of child absence were manifested in a number of ways, the great majority of the disengaged (as opposed to contact) fathers in our sample displayed a number of signs of depression, resignation, and a full grief reaction connected to the loss of their children:
It has had a very, very negative effect – like death, mourning – it is bad in every way.
It’s a very great loss. It makes me sad, I have periods of intermittent depression, I wake up at 4:00 a.m., I have a lot of sleepless nights. Of course my present wife has helped tremendously, and encouraged me to channel these feelings into positive endeavours. But there’s a tremendous feeling of loss and sadness, and it’s a loss which can never be regained. The period of a child’s life growing, in Elspeth’s case, from 8 to 14, is a vital period for her and a vital period for me, which has been lost forever.
I feel very bad — I feel I am lost with nowhere to go, with no direction. And I feel no one can save me; I don’t know how I can survive like this. I can’t sleep —all the time I think about them.
I feel numb —I don’t feel anything anymore. At first I felt completely terrified—for about 4 years. And then I just started losing all feeling. I don’t know what I feel right now.
Related to child absence is role loss, the loss of a set of functions that together constitute the “father” role. Again, the problems of role loss appeared to be more pronounced for disengaged fathers: for those fathers actively involved with their children before divorce and who defined their identity largely in relation to their parental role, as the pre-divorce relationship was perceived to be lost, so was the paternal role. Fathers considered themselves to be significantly less influential in all major areas of their children’s growth and development than did contact fathers, and rated their post-divorce parenting abilities significantly lower than contact fathers. Using Greifs (1979) framework, fathers were asked for their perception of any change (from before to after divorce) in ten functions that fathers perform vis-à-vis their children, which together constitute the “father” role (Table 3).6 In all ten areas of paternal influence, there were significant differences noted between contact and disengaged fathers; while all 40 disengaged fathers reported a decrease in influence in 8 of the 10 roles listed, the majority of contact fathers indicated either an increase or no change in paternal influence in 8 paternal roles.
Marked differences also emerged between contact and disengaged fathers with respect to their adaptation to the constraints of the new post-divorce “visiting” relationship. For disengaged fathers, “visiting” their children tended to engender persistent feelings of loss and depression, while a number of contact fathers were able to eventually establish a satisfying relationship with their children within these same limitations. Whereas for disengaged fathers, “visiting” their children signified the loss of the former relationship, for contact fathers it often presented an opportunity to develop an enhanced relationship, independent of mothers as mediators in the relationship.
Observed Differences Between Contact and Disengaged Fathers
Demographically, there were no observable differences between contact and disengaged fathers; there were no apparent differences between the two groups in relation to age, length of marriage, length of separation, or occupation and income of respondent. The sex and age of the children involved were marginal in determining whether a father continued ongoing contact or became disengaged, and initiator of separation was not a statistically significant factor vis-à-vis contact/disengagement. Whether or not a father was legally divorced was not associated with post-divorce paternal contact in our study, nor was remarriage of the father.7
Surprisingly, paternal contact did not seem to be associated with various “practical” difficulties identified in the literature as potentially inhibiting a divorced father’s subsequent contact with his children. Post-divorce paternal contact was not associated with either the type and size of the father’s accommodation after divorce or the distance between the father’s residence and that of his children: adequate accommodation and close proximity did not ensure paternal contact. The majority of both contact and disengaged fathers did not consider distance, transportation, finances, or work schedule as significant problems in relation to their ongoing contact with their children.
The differences that emerged between contact and disengaged fathers in regard to a number of other factors, however, were consistent and striking (Figure 1); most significant is the marked discontinuity between pre- and post-divorce father-child relationships. The patterns and experiences of 28 of the 40 contact fathers in the sample were diametrically opposed to those of 26 of the disengaged fathers. While 28 contact fathers consistently reported low levels of pre-divorce involvement, attachment and influence, fewer difficulties during the transition phase of divorce, and better adaptation to the consequences of divorce, 26 disengaged fathers had comparatively high scores on all indices relating to the pre-divorce father- child relationship, reported multiple difficulties during divorce, and marked problems in post-divorce adaptation.
In regard to fathers’ differential experiences before, during and after divorce, no differences were found between the British and Canadian sub-samples, suggesting a measure of universality in relation to the disengagement phenomenon.
There are two distinct and significant sub-groups of non-custodial fathers, with diametrically opposed patterns of pre- and post divorce contact with their children: previously involved and attached fathers who became disengaged, and initially “peripheral” fathers who managed to remain in contact. The majority of the disengaged fathers in our sample consistently scored high on a variety of measures of pre-divorce involvement, attachment, and influence, whereas most contact fathers had consistently low scores on the same indices.
The striking discontinuity between pre- and post-divorce father-child relationship patterns observed above suggests a process with two interacting components: the consequences of divorce and fathers’ adaptation to these consequences. For previously involved and attached fathers, the negative consequences of divorce were paramount; of the multiple losses encountered, the most salient was the loss of their children and the pre-divorce father-child relationship. For those fathers who were previously less directly involved and attached, these consequences were less pronounced, and adaptation—the development of a “part-time” parental identity within the confines of a “visiting” relationship—was not as problematic an issue. These previously “traditional” or “breadwinner” fathers often came to enjoy an enhanced level of contact with their children; improved relationships were possible within the constraints of “visiting” for these fathers, as assuming sole responsibility for their children on a limited access basis provided an opportunity to establish more meaningful relationships.
The key to explaining this finding lies in an understanding of important processes occurring in a relatively brief period of time during divorce. There is a critical period during which the nature of post-divorce father-child relationships are largely determined: the transition period from the time of divorce (separation) to about six months after, a time when access patterns become established and consolidated. This is also the stage when legal processes have their greatest impact, and when multiple adjustments are required on the part of all members of the divorcing family.
During divorce, the previously less involved and attached father, faced with perhaps weekly or bi-monthly contact in a “visiting” relationship, may find that with sole responsibility for his children during this time, his fatherhood role can become enhanced. The previously highly involved and attached father, however, faced with diminished contact and what he perceives to be rigid access arrangements, faces a dramatic disentanglement from the routines of daily life with his children – a drastic reduction of contact and role loss which, over a period of time, is a factor in his complete disengagement from the lives of his children (see Figure 2).
The disengagement of non-custodial fathers after divorce appears to be the result of a combination of structural constraints and their own psychological response to the loss of their children and the pre-divorce father-child relationship. Both structural and psychological variables are inculpated as significant mediating factors between divorce and disengagement: on their own, each is usually insufficient to effect disengagement; combined, they are a potent force mitigating against an ongoing meaningful father-child relationship.
Existing divorce literature, while containing little empirical data in regard to fathers’ desired level of contact with their children after divorce, often contains suggestions that fathers simply do not want custody of their children and that disengagement is the result of men’s lack of interest in their children after divorce (Eekelaar and Clive, 1977). We would challenge such assertions; we found that the great majority of non-custodial fathers considered traditional legal access arrangements to be grossly inadequate and damaging to the father-child relationship, and wanted their children to live with them, at least part of the time. This was particularly evident in the case of now-disengaged, previously highly involved and attached fathers.
Legal practitioners play a central role in providing their clients with a basic knowledge of the law and legal processes, helping them to decide what to ask for, and shaping expectations of what they will get. If lawyers’ advice regarding post-divorce custodial options is discouraging, it is likely that fathers will lower their expectations; if the expectation that the best fathers can hope for is limited access, these expectations shape what fathers strive for–and settle for. Given that most custody and access arrangements only reach the court as a fait accompli, the way in which legal practitioners advise their clients is an important determinant of the final structural arrangements made. The majority of fathers, faced with explicit advice and strong direction from their lawyers toward maternal custody with limited parental access, and convinced on the basis of judicial precedent that they have a limited chance of success through the courts, eventually accept the predominant pattern of weekly or bi-monthly “visiting”:
I got the impression that there would be no problem getting access, getting Andrew to stay with me on weekends and so on —but it didn’t work out that way. He also told me that I should forget about custody, and to just concentrate on access, which I now realize was wrong.
The lawyer advised me to give the mother interim custody and not to worry about it or fight it. I didn’t know at that time that in fact, when you’re talking about custody, nothing is ‘interim’—anything that is ‘interim’ means that it is forever. I didn’t know that at that time.
By pre-adjudicating custody disputes on the basis of anticipations of what would happen were the dispute to be carried to court, legal practitioners perpetuate the perceived maternal custody bias of the judiciary: inaction because of an assumption of prejudice becomes a self-fulfilling prophecy, and reinforces the status quo:
“… They don’t give men the benefit of the possibility that they may be good parents. They look at you as if you’re doing something wrong, as if you’re the guilty party. Lawyers and judges are the mainstay of the problems that men and children have, when it comes to men and children not having the right to maintain their relationship. And they support women if they decide to break the relationship — they promote women’s anger and bitterness, and promote destruction of the father-child relationship.”
Lawyers’ directions rarely differed for fathers; sole maternal custody with limited paternal access was almost universally recommended for the fathers in our sample. There exists, however, a heterogeneity of fathering roles within families. Thus while there were no differences between highly and peripherally involved and attached fathers in the actual advice they received from their lawyers regarding custody and access, the outcome for each group was radically different in terms of satisfaction with the custody and access arrangements that were made and the final outcome in regard to their post-divorce contact with their children. It may be the very fact of uniformity of approach among lawyers and the largely unvarying nature of judicial resolution of custody and access vis-a-vis fathers with vastly different patterns and experiences of fatherhood–applying a homogeneous approach to a heterogeneous population–that is largely responsible for the poor outcome of those fathers relatively highly involved with and attached to their children during the marriage. Fathers enter the legal process with radically different family life experiences; such heterogeneity warrants against a homogeneous approach, yet the legal process is bound by precedent, structured according to largely fixed rules in the determination of custody and access. Fathers with quantitatively and qualitatively different pre-divorce patterns and relationships with their children are subject to a system that does not differentiate between such patterns.
The consequences of divorce for fathers–the absence of their children, loss of the father role, and the limits and constraints of the “visiting” relationship–are determined by prevailing structural conditions, the workings of the judicial system and what the custodial mother will allow. Individual fathers’ adaptations to these consequences are the other half of the equation in relation to post-divorce contact. Adaptation to child absence, role loss, and the constraints of “visiting” is most problematic for those fathers previously highly involved with and attached to their children; restricted access following an active and highly emotionally invested relationship is tantamount to a complete loss of the relationship for these fathers. The perspective of attachment theory (Parkes, 1986; Parkes and Stevenson-Hinde, 1982) makes the relationship between the consequences of divorce and disengagement clear: those fathers most attached to their children before divorce are most likely to suffer the negative effects of the loss or absence of their children and their fathering role; reactions of intense grieving, characteristic of these fathers, are strong predictors of poor outcome.
A total of eighty non-custodial fathers, half of whom enjoyed ongoing and regular contact and half of whom were disengaged from their children’s lives, were interviewed in depth about various aspects of their divorce experiences and their relationship with their children before, during and after divorce, in an effort to better understand the phenomenon of non-custodial fathers’ disengagement from their children’s lives after divorce.
A striking discontinuity between pre- and post-divorce father-child relationships was observed: rather than post-divorce patterns reflecting the pre-divorce bond, the data obtained indicate a strong inverse relationship between the two. While a number of significant differences emerged between contact and disengaged fathers in regard to their relationship with their children before, during and after divorce, the most essential difference between the two groups appears to lie in the differential nature and quality of the pre-divorce father-child relationship. For non-custodial fathers, divorce results in a more salient loss where the pre-divorce father-child relationship was intense; the loss of the pre-divorce father-child relationship is much more debilitating where powerful attachment bonds exist, to the extent that those non-custodial fathers with the highest levels of pre-divorce involvement with and attachment to their children are most likely to subsequently lose contact.
Our data suggest that rather than reflecting a lack of interest in their children or the continuation of a disengaged pre-divorce father-child relationship, non-custodial fathers’ disengagement from their children’s lives is the result of a combination of structural constraints and fathers’ own psychological response to the loss of the pre-divorce father-child relationship. While positive outcomes of divorce can occur for some non-custodial fathers, namely those previously less involved with and attached to their children who are subsequently able to enhance their relationship, previously involved and attached fathers are the most vulnerable and “at-risk” group in regard to post-divorce disengagement.
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Table listed according to column percentages.
Table listed according to column percentages.
Legal access determinations were made in 57 cases.
Table listed according to row percentages. Categories are pre-coded, listed in order of total amount of decrease of influence.
This lack of an association is qualified by the fact that only a small number — 9 in total—of the 80 fathers in our study had remarried. Of these, 3 were disengaged fathers.
Ambrose, P, Harper, J and Pemberton, R (1983) Surviving Divorce: Men Beyond Marriage, Sussex: Harvester Press
Bala, N (1987) Family Law in the United States and Canada: Different Visions of Similar Realities, International Journal of Law and the Family 1(1)
Berger, M (1979) Men’s New Family Roles: Some Implications for Therapists, Family Coordinator 28 (4)
Bohannan, P (ed) (1970) Divorce and After, Garden City: Doubleday and Co.
Bowlby, J (1982) Attachment and Loss: Retrospect and Prospect, American Journal of Orthopsychiatry 52(4)
Burgoyne, J, Ormrod, R, and Richards, M (1987) Divorce Matters, Harmondsworth: Penguin
Burgoyne, J and Clark, D (1984) Making a Go of it: A Study of Stepfamilies in Sheffield, London: Routledge and Kegan Paul
Cohen, T F (1987) Remaking Mm, Journal of Family Issues 8 (1)
Eekelaar, J (1984) Family Law and Social Policy (Second edition) London: Weidenfeld and Nicolson
Eekelaar, J and Clive, E (1977) Custody After Divorce, Oxford: Centre for Socio Legal Studies
Erikson, E H (1959) Identity and the Life Cycle, New York: International University Press
Feiner, R D, Terre, L, Primavera, J, Farber, S S, and Bishop, T A (1985) Child Custody: Practices and Perspectives of Legal Professionals, Journal of Clinical Child Psychology 14(1)
Furstenberg, F., Nord, C W., Peterson, J L and Zill, N (1983) The Life Course of Children of Divorce: Marital Disruption and Parental Contact, American Sociological Review 48
Greif, J (1979) Fathers, Children, and Joint Custody, American Journal of Orthopsychiatry 49
Greif, J (1977) Child Absence: Fathers’ Perceptions of their Relationship to their Children Subsequent to Divorce, DSW dissertation, Adelphi University
Hanson, S M H and Bozett, F W (eds) (1985) Dimensions of Fatherhood, Beverly Hills: Sage Publications
Hetherington, E M, Cox, M and Cox, R (1978) The Aftermath of Divorce, in J H Stevens Jr. and M Mathews (eds)
Hetherington, E M, Cox, M and Cox, R (1976) Divorced Fathers, Family Coordinator 26 (6)
Jacobs, J W (ed) (1986a) Divorce and Fatherhood, Los Angeles: American Psychiatric Press
Kamo, Y (1988) Determinants of Household Division of Labor: Resources, Power, and Ideology, Journal of Family Issues 9(2)
Kelly, J A (1981) The Visiting Relationship After Divorce: Research Findings and Clinical Observations, in I R Stuart and L E Abt (eds)
Lamb, M E (ed) (1976) The Role of the Father in Child Development, New York: Wiley
Levinger, G and Moles, O C (1979) Divorce and Separation, New York: Basic Books
Lewis, C and O’Brien, M (eds) (1987a) Reassessing Fatherhood, London: Sage Publications
Lewis, R A and Salt, R E (eds) (1986) Men in Families, Beverly Hills: Sage Publications
Luepnitz, D A (1982) Child Custody, Lexington, Mass: Lexington Books
Lund, M (1987) The Non-Custodial Father: Common Challenges in Parenting After Divorce, in C Lewis and M O’Brien (eds)
Martin, J and Roberts, C (1984) Women and Employment: A Lifetime Perspective, London: HMSO
McKee, L and O’Brien, M (eds) (1982a) The Father Figure, London: Tavistock Publications
Mitchell, A (1985) Children in the Middle, London: Tavistock
Murch, M (1980) Justice and Welfare in Divorce, London: Sweet and Maxwell
Parkes, C M (1986) Bereavement: Studies of Grief in Adult Life (2nd ed) Harmondsworth: Pelican
Parkes, C M and Weiss, R S (1983) Recovery From Bereavement, New York: Basic Books
Parkes, C M and Stevenson-Hinde, J (eds) (1982) The Place of Attachment in Human Behaviour, London: Tavistock Publications
Roman, M and Haddad, W (1978) The Disposable Parent, New York: Holt, Rinehart and Winston Rutter, M (1972) Maternal Deprivation Reassessed, Harmondsworth: Penguin
Stevens, J H Jr. and Mathews, M (eds) (1978) Mother-Child, Father-Child Relations, Washington: National Association for the Education of Young Children
Stuart, I R and Abt, L E (eds) (1981) Children of Separation and Divorce, New York: Van Nostrand Reinhold
Wallerstein, J S and Kelly, J (1980) Surviving the Breakup: How Children and Parents Cope with Divorce, New York: Basic Books
Weitzman, L (1985) The Divorce Revolution: Social and Unintended Consequences, New York: The Free Press
 Edward Kruk, PhD, is Assistant Professor, The University of British Columbia, School of Social Work, 6201 Cecil Green Park Road, Vancouver, B.C. V6T 1Z1 Canada. This study on which this article is based was funded by the National Welfare Grants Directorate, Health and Welfare Canada.
The Worldview that Makes the Underclass
by Anthony Daniels, M.D. [ aka author 'Theodore Dalrymple']
Reprinted from ‘Imprimis’, a 2014 publication of Hillsdale College with amendments
The following is adapted from a speech delivered on May 20, 2014, at a Hillsdale College National Leadership Seminar in Dearborn, Michigan. Dr. Daniels eloquently describes the inevitable result of progressive/socialist/Marxist government. Policies favouring the fracturing of families meld silently with those that induce addiction and an ever-increasing prison population.
The consequences and benefits of a ‘liberal’ society coupled to a welfare state are clear and obvious to us in Europe. However, we are slowly recognising that the ‘unintended consequences’ can be as disastrous as the benefits can be life-enhancing, and as negative as a non-existent or a small welfare safety net.
I worked for 15 years as a doctor and psychiatrist in a general hospital in a poor area of a British city (Birmingham), and in the prison next door (Winson Green), where I was on duty one night in three. The really dangerous people were in the hospital, perhaps because of the presence in the prison next door of very large uniformed men who exerted a strangely calming effect on the prisoners.
In the hospital, I personally examined many thousands of patients who had attempted suicide or at least made a suicidal gesture (not quite the same thing of course). They were overwhelmingly from poor homes, and each patient told me of the lives of the three, four, or five people closest to them—and I spoke to many of those people as well. I could not, of course, have spoken to so many people, and heard about so many others, without some general impressions forming themselves in my mind. One abiding impression was of the violence of their lives, particularly that between the sexes—largely the consequence of the fluidity of relations between the sexes—and also of the devastating effect of prevalent criminality upon the quality of daily existence.
Before I did this work, I had spent a number of years working as a doctor in Africa and in other places in the Third World. I also crossed Africa by public transport, such as it was, and consequently saw much of that continent from the bottom up. These experiences also helped me in my understanding of what I was later to see in England. As Dr. Johnson put it, all judgment is comparative; or as Kipling said, “What should they know of England who only England know ?” Indeed, what should anyone know of anywhere, who only that place knows?
On my return to England, I used to visit the homes of poor people as part of my medical duties. Bear in mind that I had returned from some of the poorest countries in the world, where—in one case—a single hen’s egg represented luxury and the people wore the cast-off clothes of Europeans that had been donated by charity. When I returned to England, I was naturally inclined to think of poverty in absolute rather than in relative terms—as people not having enough to eat, having to fetch water from three miles away, and so forth. But I soon ceased to think of it in that fashion.
In the course of my duties, I would often go to patients’ homes. Everyone lived in households with a shifting cast of members, rather than in families. If there was an adult male resident, he was generally a bird of passage with a residence of his own somewhere else. He came and went as his fancy took him. To ask a child who his father was had become an almost indelicate question. Sometimes the child would reply, “Do you mean my father at the moment ?” Others would simply shake their heads, being unwilling to talk about the monster who had begot them and whom they wished at all costs to forget.
I should mention a rather startling fact: By the time they are 15 or 16, twice as many children in Britain have a television as have a biological father living at home. The child may be father to the man, but the television is father to the child. Few homes were without televisions with screens as large as a cinema—sometimes more than one—and they were never turned off, so that I often felt I was examining someone in a cinema rather than in a house. But what was curious was that these homes often had no means of cooking a meal, or any evidence of a meal ever having been cooked beyond the use of a microwave, and no place at which a meal could have been eaten in a family fashion. The pattern of eating in such households was a kind of foraging in the refrigerator, as and when the mood took, with the food to be consumed sitting in front of one of the giant television screens. Not surprisingly, the members of such households were often enormously fat.
Surveys have shown that a fifth of British children do not eat a meal more than once a week with another member of their household, and many homes do not have a dining table. Needless to say, this pattern is concentrated in the lower reaches of society, where so elementary but fundamental a means of socialisation is now unknown. Here I should mention in passing that in my hospital, the illegitimacy rate of the children born in it, except for those of Indian-sub-continental descent, was approaching 100%.
It was in the prison that I first realized I should listen carefully, not only to what people said, but to the way that they said it. I noticed, for example, that murderers who had stabbed someone always said of the fatal moment that “the knife went in.” This was an interesting locution, because it implied that it was the knife that guided the hand rather than the hand that guided the knife. It is clear that this locution serves to absolve the culprit, at least in his own mind, from his responsibility for his act. It also seeks to persuade the listener that the culprit is not really guilty, that something other than his decisions led to the death of the victim. This was so even if the victim was a man against whom the perpetrator was known to have a serious grudge, and whom he sought out at the other side of the city having carried a knife with him.
The human mind is a subtle instrument, and something more than straightforward lying was going on here. The culprit both believed what he was saying and knew perfectly well at the same time that it was nonsense. No doubt this kind of bad faith is not unique to the type of people I encountered in the hospital and the prison. In Shakespeare’s King Lear, Edmund, the evil son of the Earl of Gloucester, says:
- This is the excellent foppery of the world: that when we are sick in fortune – often the surfeit of our own behaviour – we make guilty of our disasters the sun, the moon, and the stars, as if we were villains on necessity; fools by heavenly compulsion; knaves, thieves, and treachers, by spherical predominance; drunkards, liars, and adulterers, by an enforced obedience of planetary influence; and all that we are evil in, by a divine thrusting on. An admirable evasion of whoremaster man, to lay his goatish disposition to the charge of a star!
In other words, it wasn’t me.
This passage points, I think, to an eternal and universal temptation of mankind to blame those of his misfortunes that are the natural and predictable consequence of his own choices on forces or circumstances that are external to him and outside his control. Is there any one of us who has never resorted to excuses about his circumstances when he has done wrong or made a bad decision? It is a universal human tendency. But in Britain, at any rate, an entire class of persons has been created that not only indulges in this tendency, but makes it their entire world outlook—and does so with official encouragement.
Let me take as an example the case of heroin addicts. In the 1950s, heroin addiction in Britain was confined to a very small number of people, principally in bohemian circles. It has since become a mass phenomenon, the numbers of addicts having increased perhaps two thousandfold, to something like 250,000 to 300,000. And with the statistically insignificant exception of members of the popular culture elite, heroin addiction is heavily concentrated in areas of the country such as the one in which I worked.
Heroin addiction has been presented by officialdom as a bona fide disease that strikes people like, shall we say, rheumatoid arthritis. In the United States, the National Institute on Drug Abuse defines addiction quite baldly as a chronic relapsing brain disease—and nothing else. I hesitate to say it, but this seems to me straight-forwardly a lie, told to willing dupes in order to raise funds from the federal government.
Be that as it may, the impression has been assiduously created and peddled among the addicts that they are the helpless victims of something that is beyond their own control, which means that they need the technical assistance of what amounts to a substantial bureaucratic apparatus in order to overcome it. When heroin addicts just sentenced to imprisonment arrived, they said to me, “I would give up, doctor, if only I had the help.” What they meant by this was that they would give up heroin if some cure existed that could be administered to them that would by itself, without any resolution on their part, change their behavior. In this desire they appeared sincere—but at the same time they knew that such a cure did not exist, nor would most of them have agreed to take it if it did exist.
In fact, the whole basis of the supposed treatment for their supposed disease is rooted in lies and misconceptions. For example, research has shown that most addicts spend at least 18 months taking heroin intermittently before they become addicted. Nor are they ignorant while they take it intermittently of heroin’s addictive properties. In other words, they show considerable determination in becoming addicts: It is something, for whatever reason, that they want to become. It is something they do, rather than something that happens to them. Research has shown also that heroin addicts lead very busy lives one way or another—so busy, in fact, that there is no reason why they could not make an honest living if they so wished. Indeed, this has been known for a long time, for in the 1920s and 30s in America, morphine addicts for the most part made an honest living.
Withdrawal from opiates, the fearfulness of which, reiterated in film and book, is often given as one of the main reasons for not abandoning the habit, is in fact a pretty trivial condition, certainly by comparison with illnesses which most of us have experienced, or by comparison with withdrawal from other drugs. I have never heard an alcoholic say, for example, that he fears to give up alcohol because of delirium tremens—a genuinely dangerous medical condition, unlike withdrawal from heroin. Research has shown that medical treatment is not necessary for heroin addicts to abandon their habit and that many thousands do so without any medical intervention whatsoever.
In Britain at least, heroin addicts do not become criminals because they are addicted (and can raise funds to buy their drugs only by crime); those who take heroin and indulge in criminal behavior have almost always indulged in extensive criminal behavior before they were ever addicted. Criminality is a better predictor of addiction than is addiction of criminality.
In other words, all the bases upon which heroin addiction is treated as if it is something that happens to people rather than something that people do are false, and easily shown to be false. This is so whatever the latest neuro-scientific research may supposedly show.
I have taken the example of heroin addiction as emblematic of what, with some trepidation, I may call the dialectical relationship between the worldview of those at the bottom of society and the complementary worldview of what one might call the salvationist bureaucracy of the government. In the old Soviet Union there was a joke in which the workers would say to the party bosses, “We pretend to work and you pretend to pay us.” In the case of the heroin addicts, they might say, “We pretend to be ill, and you pretend to cure us.”
One of the possible dangers or consequences of such a charade is that it creates a state of dishonest dependency on the part of the addicts. They wait for salvation as Estragon and Vladimir wait for Godot in Samuel Beckett’s play; they wait for something that will never arrive, and that at least in some part of their mind they know will never arrive—but that officialdom persists in telling them will arrive someday.
Dishonest passivity and dependence combined with harmful activity becomes a pattern of life, and not just among drug addicts. I remember going into a single mother’s house one day. The house was owned by the local council; her rent was paid, and virtually everything that she owned, or that she and her children consumed, was paid for from public funds. I noticed that her back garden, which could have been pretty had she cared for it, was like a noxious rubbish heap. Why, I asked her, do you not clear it up for your children to play in? “I’ve asked the council many times to do it,” she replied. The council owned the property; it was therefore its duty to clear up the rubbish that she, the tenant, had allowed to accumulate there—and this despite what she knew to be the case, that the council would never do so! Better the rubbish should remain there than that she do what she considered to be the council’s duty. At the same time she knew perfectly well that she was capable of clearing the rubbish and had ample time to do so.
This is surely a very curious but destructive state of mind, and one that some politicians have unfortunately made it their interest to promote by promising secular salvation from relative poverty by means of redistribution.
Whether by design or not, the state in England has smashed up all forms of social solidarity that are independent of it. This is not an English problem alone: In France the word solidarité, solidarity, has come to mean high taxation for redistribution by state officials to other parts of the population, which of course are neither grateful for the subventions nor find them sufficient to meet their dreams, and which are, in fact, partly responsible for their need for them in the first place. And not surprisingly, some of the money sticks to the hands of the redistributionist bureaucracy.
By a mixture of ideology and fiscal and social policies, the family has been systematically fractured and destroyed in England, at least in the lowest part of the society that, unfortunately, needs family solidarity the most. There are even, according to some reliable research, fiscal and welfare incentives for parents at the lower economic reaches of society not to stay together, known as LAPs (living apart together). And as for the traditaional Middle Class – the spine of any society – that has been almost crushed out of existance.
Certainly the notions of dependence and independence have changed. I remember a population that was terrified of falling into dependence on the state, because such dependence, apart from being unpleasant in itself, signified personal failure and humiliation. But there has been an astonishing gestalt switch in my lifetime. Independence has now come to mean independence of the people to whom one is related and dependence on the state. Mothers would say to me that they were pleased to be independent, by which they meant independent of the fathers of their children—usually more than one—who in general were violent swine. Of course, the mothers knew them to be violent swine before they had children by them, but the question of whether a man would be a suitable father is no longer a question because there are no fathers: At best, though often also at worst, there are only stepfathers. The state would provide. In the new dispensation the state, as well as television, is father to the child.
A small change in locution illustrates a change in the character and conceptions of a people. When I started out as a doctor in the mid-1970s, those who received state benefits would say, “I receive my check on Friday.” Now people who receive such benefits say, “I get paid on Friday.” This is an important change. To have said that they received their check on Friday was a neutral way of putting it; to say that they get paid on Friday is to imply that they are receiving money in return for something. But what can that something be, since they do not appear to do anything of economic value to anyone else? It can only be existence itself: They are being paid to continue to exist, existence itself being their work.
It has been said that the lamentable state of affairs I have described has been brought about by the decline, inevitable as we now see it, of the kind of industry that once employed millions of unskilled workers, whose wages, though low by today’s standards, were nevertheless sufficient to sustain a stable, though again by today’s standards not rich, society. And I do not think that this view can be altogether dismissed. But it is far from the whole story. One of the curious features of England in the recent past is that it has consistently maintained very high levels of state-subsidized idleness while importing almost equivalent numbers of foreigners to do unskilled work.
Let me here interject something about the intellectual and moral corruption wrought by the state in recent years—and I don’t know whether it applies to America. The governments of Britain, of both political parties, managed to lessen the official rate of unemployment by the simple expedient of shifting people from the ranks of the unemployed to the ranks of the sick. This happened on such a huge scale that, by 2006—a year of economic boom, remember—the British welfare state had achieved the remarkable feat of producing more invalids than the First World War.
But it is known that the majority of those invalids had no real disease. This feat, then, could have been achieved only by the willing corruption of the unemployed themselves—relieved from the necessity to seek work and relieved to have a slightly higher subvention—but also of the doctors who provided them with official certificates that they knew to be bogus. And the government was only too happy, for propaganda purposes, to connive at such large-scale fraud. One begins to see what Confucius meant when he said, 2,500 years ago, that the first thing to do to restore a state to health was to rectify the names—in other words, to call things by their right names rather than by euphemisms.
There are three reasons that I can think of why we imported foreign labor to do unskilled work while maintaining large numbers of unemployed people. The first is that we had destroyed all economic incentive for the latter to work. The second is that the foreigners were better in any case, because their character had not been rotted; they were often better educated—it is difficult to plumb the shallows of the British state educational system for children of the poorest homes—and had a much better work ethic. And the third was the rigidity of the housing market that made it so difficult for people to move around once they had been granted the local privilege of subsidized housing.
I will leave you with an anecdote. As Mao Tse-tung might have put it, one anecdote is worth a thousand abstractions.
I had been asked by the courts to examine a young woman, aged 18, who was accused of having attacked and injured her 90-year-old great-grandmother, with whom she lived, while under the influence of alcohol and cannabis. She had broken her great-grandmother’s femur, but fortunately it did not prove fatal. (Incidentally, the homicide rate, it is said, would be five times higher than it is if we used the same medical techniques as were used in 1960.) I asked the young woman in the course of my examination whether her mother had ever been in trouble with the police.
“Yes,” she replied.
“What for?” I asked.
“Well, she was on the social,” she said—“on the social” in English argot means receiving welfare payments—“and she was working.”
“What happened?” I asked. “She had to stop working.”
She said this as if it was so obvious that my question must be that of a mental defective. Work is for pocket money, the public dole is the means by which one lives.
That, ladies and gentlemen, is the view from the bottom, at least in Britain: but it is a view that has been inculcated and promoted from the top.
About the author:
ANTHONY DANIELS, who often writes under the penname Theodore Dalrymple, is the Dietrich Weismann Fellow at the Manhattan Institute and a contributing editor of City Journal. Born in London in 1949, he qualified as a doctor in 1974 and has worked in various countries in Africa and elsewhere. From 1990 to 2005, he worked as a doctor and psychiatrist in a prison in Birmingham, England. He has written a column for the London Spectator for 14 years, and writes regularly for National Review and the Wall Street Journal. He has published more than 20 books, including Not With a Bang But a Whimper: The Politics & Culture of Decline, The New Vichy Syndrome: Why European Intellectuals Surrender to Barbarism, and Life at the Bottom: The Worldview that Makes the Underclass.
Imprimis is the free monthly speech digest of Hillsdale College and is dedicated to educating citizens and promoting civil and religious liberty by covering cultural, economic, political and educational issues of enduring significance. The content of Imprimis is drawn from speeches delivered to Hillsdale College-hosted events, both on-campus and off-campus. First published in 1972, Imprimis is one of the most widely circulated opinion publications in the nation with over 2.7 million subscribers.
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Cross-border relocation – experiences from the US
INTERNATIONAL JUDICIAL PERSPECTIVES ON RELOCATION
‘ROCK-PAPER-SCISSORS: Playing the Odds with the Law
Of Child Relocation’
by The Hon. W. Dennis Duggan
Family Court Review – April 2007
This article offers for inspection the proposition that the adversarial evidence-based litigation process is unsuitable for resolving custody cases in general and relocation cases in particular. It analyzes the leading cases from New York, Massachusetts, California, England, Canada, and Australia. It reaches a conclusion that no jurisdiction has devised a legal standard or formula that enables a judge to predict the future best interest of a child if that child is allowed to relocate with one parent away from the other. For this reason, the court has a duty to offer as sophisticated and friendly a settlement process and atmosphere as possible.
However, knowing that judges will still be required to resolve these difficult cases because they often seem impervious to settlement, the article offers thirty-six factors that a court should consider in all move-away cases. By relying on each of these factors that is relevant to the case, the parents will have an understanding of why the decision was made the way it was and it will also allow for effective appellate review.
Keywords: relocation; move-away; presumption; burden of proof; factors; international; best interest.
Heisenberg’s uncertainty principle  states that, when one views the internal workings of an atom, the very act of that inspection changes the way that things look.
In family court, the inspection that we bring into parents’ lives changes them and almost always for the worse. Even the language the judiciary uses puts them in full battle mode. How often do we hear a parent say, “I’m going to fight for custody” or “He won’t even get visitation.”
This, of course, is the language of our law. It is heard in all jurisdictions and in all languages. That said this commentary while it reflects Common Law – as it is found in the US, Canada, Australia, New Zealand, Britain (and of course former colonial countries including unexpected ones such as Israel), – is not exclusive to those countries who operate Common Law (and bear in mind it is now 7 years since it was first published – RW).
While a custody proceeding is pending, parents often do things that are directly contrary to their best interests, such as leaving a hateful, obscenity-laced voice mail on the other parent’s mobile phone the night before court. With this said, let’s review the 10 reasons why a custody case should never be tried and why this conflict resolution method should be condemned.
- NO ONE CAN AFFORD A TRIAL.
- YOU CAN’T PROVE A POSITIVE.
- PARENTS ARE AT THEIR WORST WHEN YOU MUST DETERMINE THEIR BEST.
- YOU CAN’T PUT YOUR FOOT IN THE SAME RIVER TWICE.
- TRIALS DESTROY ALL ‘GOOD WILL’.
- CONTESTED CUSTODY PROCEEDINGS ADDICT PARENTS TO CONTROVERSY.
- THEY’RE THEIR KIDS – THE PARENTS SHOULD DECIDE WHAT IS BEST.
- KIDS WANT THEIR PARENTS TO BE IN CHARGE.
- JUDGES ALWAYS KNOW LESS THAN PARENTS.
- YOU REAP WHAT YOU SOW.
The 10 factors set out above apply to almost every proceeding in family court. Unfortunately, due to the parental dynamics that surround the issue of relocation, in relocation cases these factors are amplified. This makes relocation cases almost impervious to settlement. The reasons for this are obvious. In most cases, the moving parent has painted herself (the general consensus is that about 80% or more of relocation applicants are custodial mothers) into a corner by the life decisions that she has made before coming to court – like getting married to a man who lives in a distant city.
For the non-moving parent – one has to ask “What’s in it for him ?”
With neither parent being able to back away or compromise their position, and seeing no common ground, the mother and father will look to a family court judge to force one of their hands – but which hand to force ?
There are other reasons why custody cases and especially ‘relocation’ cases should never be tried in a court. Setting aside for the moment the fact that the adversarial approach does not result in a better answer with any greater frequency than a rock-paper-scissors game, there is the problem of collateral damage.
The adversarial system in family court tends to bankrupt parents both financially and emotionally. Find me one parent who would do it again ?
At the end of a custody trial, parents who once had goodwill and respect for one another at the start, thoroughly hate each other at the end. And after that bruising ordeal we calmly expect parents to co-parent at a distance when they could not co-parent together. And, to top it off, we just put them through a process that has drained them of all interest in co-operation.
A New Phenomenon
There was not much call to develop a cohesive body of relocation law in the 1950s, ’60s or ’70s in America because many more people stayed married and had fewer children outside of marriage – and even fewer parents moved.
However, in 1976, the D’Onofrio case from New Jersey really got it started and that decision has been followed widely.
Ever since then American courts have been flailing around trying to develop a coherent set of rules for relocation cases. They have struggled, mainly on three issues:
(1) presumptions, usually either in favour of or against the move
(2) burdens of proof and when and how they shift, and
(3) the factors to be considered.
In the following paragraphs the leading cases of New York state, California, and Massachusetts will be compared with the leading cases in Great Britain, Canada, and Australia, to see if any appellate court has satisfactorily resolved the conundrum I present. These cases are:
1. New York, Tropea v. Tropea [FN9]
2. California, Burgess v. Burgess [FN10]
3. California, Lamusga v. Lamusga [FN11]
4. Massachusetts, Mason v. Coleman [FN12]
5. Great Britain, Payne v. Payne [FN13]
6. Australia, U v. U [FN14]
7. Canada, Gordon v. Goertz [FN15]
Reading the reviews of these leading relocation legal opinions from the highest courts in six significant jurisdictions there is no agreed-upon methodology to resolve these cases. Some courts, in my view, have violated the judicial Hippocratic Oath of ‘first do no harm’ (New York has told its trial courts to, in effect, “do your best”).
The 36 Relocation Factors
So what is a family court judge to do? A trial court judge can improve the odds of reaching a correct decision (or the least incorrect decision) by requiring the parents to provide as much evidence as is available on every factor that could conceivably impact the child’s best interest, the family dynamics, and the other equities of the situation.
Pooling judgments from over 60 state and international decisions and their respective statutes in several of those jurisdictions, I have distilled the 36 relocation factors.
If one examines the leading cases on relocation and the statutory provisions of the several states in which the legislature has addressed the subject, you will discover the following relocation factors – none of which, by the way, specifically mentions parks, schools, or weather. These factors are:
1. Length of the parent-parent relationship
2. Length of the parent-child relationship
3. Were the parents married ?
4. Parents’ time-sharing agreement
5. Quality of parenting time
6. Quantity of parenting time
7. Age, maturity, and special needs of the child
8. Reason for the move
9. Reason the staying parent objects to the move
10. The advantages of the move to the moving parent
11. Advantages of the move to the child
12. Disadvantages of the move to the staying parent
13. Disadvantages of the move to the child
14. Travel time and cost of travel
15. The demands or benefits of the moving parent’s second marriage/relationship
16. Feasibility of a parallel move by the staying parent
17. Feasibility of a move by the moving parent’s new husband or significant other
18. Does the staying parent really want custody ?
19. Is a change of custody practical?
20. Can meaningful child access for the staying parent be provided if the move is allowed ?
21. Will the moving parent comply with the access order?
22. The effect of the move on extended family on both sides
23. Personal misconduct by either parent
24. The preference of a mature child
25. Any agreement between the parents about relocations
26. The child’s adjustment to home, school, and community
27. The length of time the child has lived in a stable environment
28. The financial resources of the two family units
29. The expected permanence of the new custodial environment
30. The mental and physical health of all persons in the two family units
32. Ability of the parents to cooperate with each other
33. Ability of the moving parent to foster the child’s relationship with the staying parent
34. The effect on the child of any domestic violence
35. Any false allegations of sex abuse?
36. The citizenship status of the parents and the child
If a court receives evidence on as many of these factors as have relevance to the case and determines for each one whether it weighs in favor of one parent or another, a trial judge will have a fair chance of getting a relocation case right, but only if one parent clearly predominates. The considerations are, obviously, not all of equal weight and in different cases the same factor may have differing weight.
With all this said, I want to advocate for two things. First, we must create a process that encourages, empowers, and commands parents to reach joint decisions. Second, the legislature must create some bright-line rules that raise the bar for parental behaviors and expectations and that add some predictability to the process. Here are some suggestions:
To encourage, empower, and command parents to reach joint decisions requires a lot of education of the parents and the lawyers by the judge. It also requires that the judge create a settlement-friendly family court process. Courtrooms by their very nature put parents in opposition. In fact, when they enter a courtroom, we stop calling them parents and start calling them parties. No wonder they stop behaving as parents. Let us lower the threat level from red to blue and provide parents with an arena of calmness where rationality can prevail. Let us take the psychologist out of the courtroom and put him or her back into the consultation room where he or she can educate the parents about the challenges they will face raising their children if the parents are distant from one another. Let us also use mediation, through which the parents and their lawyers can assess the relocation factors in an objective manner and in a pressure-reduced setting.
Second, the legislature (and only the legislature) might want to consider some bright-line rules that express a social policy that favors two involved parents living near one another and that injects some predictability into the process. Here are a few suggestions to provide some food for thought:
1. It shall be a rebuttable presumption that it is in a child’s best interest to relocate with a parent who exercises more than 70% of a child’s parenting time, provided that the move is for a valid purpose and the location of the move is reasonable in light of that purpose.
2. A custodial parent shall be entitled to relocate with a child for any valid reason if (1) the parents were never married or never resided for more than 2 continuous years together as a family unit, (2) the noncustodial parent has only occasional or sporadic contact with the child, or (3) the noncustodial parent has failed to substantially support the child.
3. A relocation shall be deemed to occur when a child would reside more than a 1-hour drive from the noncustodial parent or when the move would otherwise significantly impair the noncustodial parent’s access that had been customary prior to the move.
4. If a relocation is prompted primarily by financial concerns, an offer by the noncustodial parent which ameliorates those considerations by an increase in support to the child or mother shall be a factor weighing against the move.
5. If a move is allowed, a noncustodial parent shall be allowed a dollar-for-dollar reduction in child support to offset any costs of exercising his parental access.
6. If a relocation is allowed that is not conducive to regular contact on at least a twice monthly basis, the noncustodial parent shall have a presumptive right to 75% of the total amount of all school breaks lasting longer than 3 days.
If we, as a society truly valued the rights of children beyond all others, we would have laws that commanded parents to live within the same school district as their children. We will never see such a law for many reasons but primarily, I believe, because much of the homage that we pay to children’s rights is lip service at best and hypocrisy at worst.
When a parent enters a lawyer’s office with a relocation case, he or she has embarked on a process that will cast his or her child’s fate to the wind. Once a contested custody case has commenced, a parent, by that point, has surrendered almost all control over the future of his or her child.
My advice – use ‘rock – paper – scissors.’
It’s faster, cheaper, and just as accurate.
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The Hon. W. Dennis Duggan has been a family court judge since 1994. He is a trustee of the National Council of Juvenile and Family Court Judges and past president of the New York State Family Court Judges Association.
He is also a member and past director of the American Judges Association and the American Judicature Society. Judge Duggan is also a founding Board Member of the New York Chapter of the Association of Family and Conciliation Courts and its current president. Within the New York State Judiciary he serves on the Judicial Institute
Committee, the Family Court Advisory and Rules Committee and the Family Law Curriculum Development Committee. Judge Duggan is on the faculty of the National Judicial College and the New York State Judicial Institute.
He is a frequent lecturer at international, national, and state judicial and legal programs. He also writes a monthly column for the bar association newsletter on topical issues on the history of the law. Correspondence: email@example.com
 Werner Karl Heisenberg (b. Dec 5th 1901 – d. Feb 1st 1976), German nuclear physicists and one of the key creators of quantum mechanics. Awarded Max Planck Medal (1933) and a Nobel Prize in 1932.
Statistics, once upon a time, told us how many people divorced; whether they were male of female and why they were divorcing. But in our complex social world this is not enough.
Today, all we get (for the most part) is ‘aggregated’ figures. One has to be persistent to get any gender breakdown and there is always the likelihood that this aspect of data collections will one day cease due to budgetary requirements – as has happened in Canada.
By the late 1990s only the Totals appeared in government press releases, indicating for example, that this year’s total was 3% higher or lower than the 160,000 of last year.
In this environment Table A (below), showing the itemised number of ‘Divorces granted to a sole party’ (by gender and for what reason) is something of a rarity.
In the 1940’s when divorce was a rare occurrence in Britain the stated grounds and petitioner (the one bringing the action for a divorce), were clearly identified and published. The stigma was in being ‘named and shamed’ with the details appearing in the local newspaper or, if prurient enough, appearing in the Sunday sensational weekly press, e.g. News of the World etc. With the 1968 and 1969 Act that is now no longer the case.
And while some very basic analysis was normal (the who and the why), when “Quickies” were first introduced as an ‘emergency measure’, and hit a peak of 60,000 in 1947, even this gender analysis was abandoned.
Parliamentarians have been fond of excusing – even in the 1960s – their divorce reforms on the grounds of defending the ‘deserted spouse’, i.e. the wife. But as the above figures show, this is more of a fiction than a reality (2,343 in 1981, falling to 276 in 2008), when weighing the totality of numbers involved.
Marriages falling apart due to mutual or unilateral lack of interest in the other partner, i.e. ‘Separation 2 yrs + consent’ and ‘Separation (5 years)’ appear static over the decades.
What is interesting is the switch-over in the grounds for divorce by men and women since the 1980s. Adultery was once the preferred vehicle for obtaining a divorce since 1969 but gradually and reflecting the courts lax approach toward the wording of Unreasonable Behaviour” (there was an expectation of mental or physical cruelty in this ground). As a result the ‘behaviour’ ground now means anything anyone wants it to mean, and it thus has risen in popularity (48,825 in 1981 and 57,604 in 2008).
Perhaps reflecting our present lowered moral values, ‘Adultery’ as a ground for divorce almost halved between 1981 and 2008 (18,262 + 25,625 and 7,328 + 13,437, male / female, respectively).
Apart from the already mentioned ‘desertion; category the other grounds have remained surprisingly constant, re: 1/. Separation for 2 yrs with consent, 2/. Separation (5 years) and 3/. Others.
by Robert Whiston FRSA Aug 30th 2013
Everyone expects Dads to identify with boys and ‘bond’ together through boy-based games and role play – but overlooked is the very great influence of a father’s role on his daughter and her perception of the world.
One study found that only 30% of fathers believed that active involvement in their daughter’s life was vital to her health and well-being. This is despite recent findings that a Dad’s influence is as great, and sometimes greater, than a mother’s.
Dads, and it has been well documented since the 1970s, shape a girls’ interactions with men later in life. Dads also affect their daughter’s self-esteem, independence and stress levels.
No one wants their daughter to choose the wrong sort of young man or to hang around with the wrong set of people.
Clinical psychologist Jennifer Kromberg puts it this way:
- “In my years of psychology practice, I’ve met very few women who did not unconsciously or consciously pick a romantic partner based on the characteristics of her father.”
Dr Linda Nielsen Professor of Educational & Adolescent Psychology, at Wake Forest Uni. (USA) has for many years written papers on the beneficial impact of close father-child relationships especially girls and has written two books on the subject (see “Father Daughter Relationships: Contemporary Research & Issues” pub. 2012).
According to a report by the US Department of Health and Human Services:
- “Children who have an involved father are more likely to be emotionally secure, be confident to explore their surroundings, and, as they grow older, have better social connections.”
This is a sentiment echoed in the research findings of Dr. Warren Farrell in his book “Father and Child Reunion” (for a summary go to http://www.warrenfarrell.biz/Summary/index.html ).
For his part, American musician and blogger Clayton Craddock says:
- “. . . . my father is now one of my best friends. There is not a soul I respect or love more than my dad.
- I am acutely aware that not all dads are like this and there are plenty of women (and men) who have been without a father or at least without a worthy one.
But one thing we should never do is underestimate the importance of Dads.”
If you are a dedicated father, then what has happened to you, particularly if you’d been separated, teaches you to re-think relationships, marriage, fatherhood, parenting and especially our culture of divorce.
The impact leaves you wanting to be a social reformer and an advocate for fathers and their children. If you want change, then join a Men’s and Fathers’ organisation such as, Men’s Aid, F4J, Dadshouse or FNF, today.
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Reference: American musician and blogger, Clayton Craddock http://socraddockmethod.com/2013/08/30/the-importance-of-dads/
By Robert Whiston FRSA Aug 29th 2913
This article is reproduced from an article first issued on May 29, 2013 by the ‘National Parents Organisation’ (USA) – formerly the Fathers and Families Coalition.
PAS is not yet recognised as a ‘syndrome’ but a ‘disorder.’
Release of Parental Alienation Study Group
International Task Force
Family unity took a major step forward at the American Psychiatric Association’s annual meeting in San Francisco on May 18-22, 2013, with the inclusion of language that describes the serious mental health problem of “Parental Alienation.”
For the first time, mental health professionals in the U.S. will have officially recognized concepts to diagnose children who experience Parental Alienation, strengthening the case against parents who strive to alienate children during divorce.
- “This is an important advance for the psychological health of children and families,” said William Bernet, MD. Bernet is a leader of the Parental Alienation Study Group, the international task force that submitted the proposal to include parental alienation in DSM-5. Bernet, professor emeritus at Vanderbilt University School of Medicine, said, “Including language that is specifically applicable to parental alienation empowers the mental health and legal communities to address this important problem more directly and with greater clarity. These revisions to DSM-5 will reduce the harm that parental alienation causes to families.”
Parental alienation is a mental condition in which a child – usually one whose parents are engaged in a high-conflict separation or divorce – allies strongly with one parent and refuses without good cause to have a relationship with the other parent.
This process takes place when a parent or caregiver encourages the child’s rejection of the other parent. Parental alienation is driven by the false belief that the rejected parent is evil, dangerous, or not worthy of affection. When the phenomenon is properly recognized, the condition is preventable and treatable in many instances.
DSM-5 now includes the new diagnoses of “child psychological abuse” and “child affected by parental relationship distress.”
Moreover, “parent-child relational problem” refers to the concept of parental alienation, although the actual words “parental alienation” are not in DSM-5. Depending on the circumstances, each of these three diagnoses can be used in cases of parental alienation.
- Child psychological abuse is defined as “non-accidental verbal or symbolic acts by a child’s parent or caregiver that result, or have reasonable potential to result, in significant psychological harm to the child.” In many instances, the behavior of the alienating parent constitutes child psychological abuse.
- Child affected by parental relationship distress should be used “when the focus of clinical attention is the negative effects of parental relationship discord (e.g., high levels of conflict, distress, or disparagement) on a child in the family, including effects on the child’s mental or other physical disorders.“ That is a very good description of how parental alienation comes about.
- Parent-child relational problem now has a discussion in the text of DSM-5. The discussion explains that cognitive difficulties in parent-child relational problem “may include negative attributions of the other’s intentions, hostility toward or scapegoating of the other, and unwarranted feelings of estrangement.” That is a very good description of a child’s view of the alienated parent.
The Parental Alienation Study Group consists of a highly credentialed group of mental health and legal professionals and other individuals who are experienced in identifying and treating parental alienation.
The Parental Alienation Study Group initially proposed in 2008 that parental alienation should be included in DSM -5. Their complete proposal was published as Parental Alienation, DSM-5, and ICD-11 (Charles C Thomas Publishers, 2010).
The Parental Alienation Study Group includes 130 individuals from 30 countries.
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Written in 2003, this article represents a retrospective look at the pro-father anti-father debate that has encircled child custody issues for 30 years. It serves as a reminder that the main issues have not changed and despite all the evidence available the rearguard action is still being vigorously fought by opponents to a fair share of custody time between both parents. It is, sadly, a product of its time when the fashion was to depict fathers as tending to have anti-social leanings and the debate was all about the “quality of time” spent together – not the quantity.
Life with (or without) Father: the benefits of living with two biological parents depend on the father’s antisocial behaviour.
by: Jaffee SR, Moffitt TE, Caspi A, and Taylor A
Pub’d Child Development, 2003, 74,1, pp 109-126
[ Abridged ]
The salutary effects of being raised by two married, biological parents depend on the quality of care parents can provide. Using data from an epidemiological sample of 1,116 5-year-old twin pairs and their parents, this study found that the less time fathers lived with their children, the more conduct problems their children had, but only if the fathers engaged in low levels of anti-social behavior. In contrast, when fathers engaged in high levels of anti-social behavior, the more time they lived with their children, the more conduct problems their children had. Behavioral genetic analyses showed that children who resided with antisocial fathers received a “double whammy” of genetic and environmental risk for conduct problems. Marriage may not be the answer to the problems faced by some children living in single-parent families unless their fathers can become reliable sources of emotional and economic support.
A substantial body of research has shown that, on average, children who are raised from birth in two-parent families have better cognitive and behavioural outcomes compared with children who have ever lived with in single-parent families, more than 80% of which are headed by single mothers (Carlson & Corcorran 2001; Fields & Casper, 2001; Hetherington & Chingoram, 1992; McLanathan & Sanderfur, 1994; Pryor & Ooders. 2001). Thus, in linking poor child outcomes to family structure some researchers and policy makers have pointed to the casual role of absent and uninvolved fathers in the development of children’s behaviour and academic problems (Blankenhorn 1993; Popenoe 1996). in an overview of the role of fathers in children’s development Lamb (1997), summarised several reasons father absence is associated with poor outcomes for children, citing the emotional distress of single mothers who may receive little social support, economic stressors, perceptions of abandonment by children and pre-divorce and post-divorce marital conflict.
These findings have led some researchers and policy makers to conclude that if children fare better when they are raised in two parent families, parents should be offered incentives to get married and remain married (Lform, 2001, Popenoe 1996).
This article reviews the evidence that children raised in single-parent families experience poorer outcomes compared with children raised by two biological parents , to evaluate whether the salutary effects to all families and to consider the implications of policy designed explicitly to promote marriage.
Family Structure and children’s development
National survey studies of family structures and children’s outcomes consistently find that that children raised in two parent families do better than children raised in single parent families on all measures of educational attainment and adjustment. these difference arise because children of single patent families versus two-biological parents grow up in vastly different socio-economic contexts and because single mothers have lower educational attainment less social support and poorer psychological well-being C & C 2001 Dunn, Jenkins Pickering Dewter & Rabash 2001). With respect to socioeconomic context, researchers have found that as much as 50% of the association between family structure and . . . .
Data was used from an epidemiological sample of 1,116 same-sex 5-year-old twin pairs and their parents. Participants were members of the Environmental Risk (E-Risk) Longitudinal Twin Study, involving two consecutive birth cohorts (1994 and 1995). The sample consisted of two-thirds of study mothers who accurately represented all mothers in the general population (15-48 years) in England and Wales in 1994 and 1995, and one-third of study mothers who were at high risk based on their young age at first birth (15-20 years). Of the twins, 56% were monozygotic and 44% were dizygotic, with gender evenly distributed across zygosity (49% male). Data was collected on father’s and mother’s history of antisocial behaviour, amount of father presence, father caretaking, father’s marital status, and children’s antisocial behaviour (Achenbach 1991).
The study was based on a sample of twins, since parents of twins may experience more economic and social stressors than parents of singletons. Further research with singletons would illuminate this point. Data on fathers’ anti-social behaviour, caretaking and presence in the home were collected from mothers and not fathers, and although validation work has shown that father’s and mother’s reports of father’s antisocial behaviour are highly correlated (Caspi et al, 2001) caution is needed. Finally this research is not longitudinal, and contains no data to suggest whether fathers with high levels of antisocial behaviour when children are relatively young, either continue in the same way into their children’s adolescence, or continue to have the same association with higher levels of conduct disorder. In addition, it is important to place the findings in context. For example, the study found that where fathers’ anti-social behaviour was high, those whose fathers cared for them on a daily basis had the worst behaviour problems, but when fathers’ antisocial behaviour was low, those whose fathers never took care of them had the worst behaviour problems. Finally, the research does not attempt to identify whether children model their father’s anti-social behaviour or whether his behaviour is mediated through other aspects of the family environment such as parental conflict, parenting, or job insecurity.
Ø The less time fathers lived with their children, the more conduct problems their children had, but this was only true if the fathers engaged in low levels of anti-social behaviour
Ø For fathers with high levels of anti-social behaviour, the more time they lived with their children, the more conduct problems their children had
Ø Children who do not live with fathers who have high levels of antisocial behaviour have fewer conduct problems than those who live with their high-level anti-social fathers
Ø Behavioural genetic analyses showed that those living with anti-social fathers receive a ‘double whammy’ of genetic and environmental risk for conduct problems
Implications for Social Work Practice
In the previous study by Flouri and Buchanan very positive outcomes were reported for children whose fathers were ‘involved’. This paper suggests that in some families fathers may not always be associated with positive benefits and this may be important for social workers to know.
The findings also fit neatly with other research suggesting that it is the quality of the marital or cohabiting relationship that is important rather than its nature. It also stresses the importance that may attach to early interventions (the children in this study being aged about 5). Fathers, for example, may be most willing to be involved in interventions shortly after the birth of a child, when many couples in ‘fragile’ families express the hope that their relationship can succeed (Carlson and McLanahan, 2002). Where there is discord, however, it may be better for the child to live with his/ her mother, than for the woman to remain with a highly antisocial partner. Social workers should, however, bear in mind that the wives/ partners of highly anti-social men are also at increased risk of anti-social behaviour (Krueger et al, 1998) and that ‘blame’ may not always be laid at the door of the anti-social father.
Implications for Policy
More research is needed to identify the likely mediating mechanisms involved. However, the findings suggest caution in a blanket pro-father and pro-marriage social policy and that where mothers have opted not to live with fathers who have high levels of anti-social behaviour, they should be supported at both practical and financial levels. The study found, in line with other research, that the children of antisocial fathers are at genetic risk for the development of behaviour problems. These children should be targeted as early as possible for interventions that involve the entire family so that genetic vulnerability is not exacerbated by environmental factors.
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by Robert Whiston FRSA August 2nd 2013
Or is it yet more “Promises, promises” ?
It is always astounding to our American colleagues that Britain, the birth place of “the Enlightenment”, Magna Carta and a host of other fundamentals essential for the American constitution should have developed ‘secret courts’ for the administration of even a fraction of its justice system.
America, as we have witnessed on so many occasions is unafraid of washing its dirty laundry in public, putting its trust, like no other, in openness and the Latin legal phrase Fiat justitia ruat caelum, meaning “Let justice be done though the heavens fall.”
Why we abandoned this tenet is probably wrapped up in the history of the last century and with propaganda which was thought essential at the time to restrict seepages of information to the enemy.
Exhortations to the public were systematically made throughout both World Wars to encourage them to restrict conversations even to husbands and wives – and most certainly to work colleagues and friends. The contemporaneous posters used are now valuable ‘collectables’ and a sample of the phrases used are shown here:
When America joined the war it had its own 5th columnists and so produced Americanised version of what had been devised some years earlier. “Lose lips sinks ships” is perhaps the most remembered catch phrase from that era.
The trouble is that unlike America that went back to its original free and easy days, Britain went straight into the Cold War where the same denial of intelligence was essential. Geographically the front line was the same as it had been in 1939 – too close for comfort.
For example, ‘D-Notices’, were first introduced in 1912 in anticipation of German naval rearmament. A ‘D-Notice’ (or Defence Notice) meant that newspapers could not publish material deemed sensitive for reasons of national security to the public and therefore to an enemy. The system is still operating today (2013) in the UK.
The above might be seen in future years as merely an ‘excuse’ but there can be no doubt that we have been conditioned, like a Pavlovian dog, to still think of secrecy as a normal element in life and like a “junkie” it is an awfully ingrained habit to try to break.
Into the light
So against this historical flood tide of restrictions and a mindset of secrecy at all costs which permeates many levels of ‘the establishment’, it is refreshing to see an attempt to break the stranglehold.
Between the judiciary and Chris Grayling, the Justice Secretary, a review is underway that realises that the epithet of judges working in a secret court is a stain not just on the whole legal system but a justifiable besmirchment of Britain itself as a paid-up member of the EU.
We are now – or should be – well past the point where secrecy, as a default, is essential. The general public while its’ literacy may be questioned is today far more savvy with politics and less deferential; towards politicians. We are in the era of Facebook, Tweets etc and it’s not uncommon for revolutions to be organised utilising the new social mediums. There is no need for us to be groomed as if Pavlovian dogs.
The mainstream journalistic media has broadly welcomed the change in Britain’s rules which will allow more ‘public oversight’ of family courts but we have to remind ourselves that this is only a possible recommendation – and is not yet an enacted fact.
We are told thatthe cloak of secrecy will be lifted from family courts but the details then reveals that this applies only to the Court of Protection, where life – or – death decisions about patient treatment or care for those unable to make choices are currently taken without public accountability.
It would be fair to say that the advent in 2005 of the Court of Protection occurred below most people’s horizons and created no “blip” on their radar screens. One can imagine it is aimed at handling cases where dementia and degrees of non compos mentis exhibit themselves and so this new court deals with applications for enduring powers of attorney, ‘Lasting Powers of Attorney’, the appointing of new trustees, and the authorising of certain gifts and making statutory wills.
It is not too difficult to see that it might eventually evolve to deal with claims for euthanasia and the separating of conjoined twins, e.g. after a court case in Britain, Laleh and Ladan Bijani were surgical separation in Singapore in 2003 but died. 
However, also included – but almost as a timid afterthought – is the prospect of local authority town councils and expert witnesses being routinely named in cases where evidence can decide whether homes are broken up or not.
This would seem to indicate adoption cases and ‘public law’ matters which of late have attracted wholesale criticism due to many instances of incompetence revealed against all the odds of a suffocating secret court regime.
In all cases involving expert witnesses and public authorities, these will be named unless there are ‘compelling reasons’ not to. so one has to ask how often will compelling reasons be found ?
The Family Division makes thousands of rulings every year about whether children are adopted or put in ‘care’, and the access arrangements for separated parents – as well as ruling on contested divorces.
We are promised new rules that will ensure court decisions are ‘under public scrutiny’ but is that limited to adoption where ‘the ‘establishment’ has yielded to the public outcry – or does it extend to child custody cases in divorce where politicians and the judiciary have been more than a little recalcitrant
The bigger prize
Incrementally then, we seem to be edging towards recognising “the elephant in the room” – private law cases, more usually known as divorce and the subsequent custody battles over child ‘allocation’ between the parents.
Family courts, which currently hold many if not all of their hearings in private (in camera), are in line to get a healthy dose of transparency. But will they to paraphrase the poet Dylan Thomas ‘go quietly into that good night’ ?
Crucially – and this will be the ‘acid test’ – the updated guidelines plan for the vast bulk of cases in both courts to be in published judgment format, but again ‘ . . . . . unless there are compelling reasons why it should not’.
And the answer is not long in coming:
- “Results of divorce proceedings are also likely to be published, unless they involve children – but names will not be released.”
Since most divorces do involve children it will be another instance of, “plus ça change, plus c’est la même chose” (the more things change, the more they stay the same). 
Wincing from the barbed and torrential repudiation of being likened to Soviet-styled secret courts, the judiciary has not been slow to respond. Not slow, that is, in its own terms, for although it was Sir James Munby, president of the Family Division who ‘launched’ the new rules, it was the same (plain) James Munby and his neighbours who had to tolerate protests and demonstrations about his daily ‘orphaning’ of children, outside his London town residence some 10 years ago.
A revamped Sir James Munby said at the launch of the changes, in July 2013, that they were designed:
- ‘ . . . . to bring about an immediate and significant change in relation to the publication of judgments’.
- In both courts there is a need for greater transparency in order to improve public understanding of the court process and confidence in the court system.
Family courts have long been criticised for holding their hearings in private and then not publishing the results – and the collateral ‘gagging order’ prevented even lawyers from discussing cases between one another. The whole situation had become farcical as the example below shows:
- Sarah Harman, a lawyer and sister of a government minister, Harriet Harman (solicitor-general), forwarded forced adoption documents to her sister for advice, in 2004. She was convinced her client had been the victim of an injustice when her child was taken into care. This sisterly exchange later came to light and Sarah Harman’s career as a lawyer was nearly ended as a result.
At last and perhaps – and it is only a perhaps – at this late stage the present regiem of too few judgments being made available to the public have been recognised as not in the “public interest” and that perhaps the public has a legitimate interest in being able to read what is being done by judges in its name.
There are many instances of this but one, in 2008, saw a senior judge criticise East Sussex County Council for its ‘wholly unacceptable abuse of power’ by rushing through the adoption of an 18-month-old child and blocking a challenge by the child’s natural father.
Last year (2012) the Daily Mail reported how life-changing decisions about the care of children were routinely being made on the basis of flawed evidence. And a study for the Family Justice Council revealed that a fifth (20%) of ‘experts’ brought in to advise the family courts were completely unqualified but they were still able to make thousands of pounds a year in fees from local authorities.
Little wonder then that Justice Secretary, Chris Grayling, says:
- ‘We have been clear that there needs to be more openness in the Family Courts and the Court of Protection. This draft guidance will begin the important public debate we need to have about transparency in these courts.’
Last month (June 2013), Britain’s Supreme Court launched a stinging attack on secret justice, saying it is ‘not justice at all’.
Its president, Lord Neuberger, said hearing evidence behind closed doors was ‘against the principle of justice’
Ushering in a new era ?
So are we at the point where congratulatory letters to Chris Grayling MP for ushering a new era are in order ?
Newspapers have described his initiative as capable of making a significant change which will affect thousands of families. But we suspect they have no idea that if carried through as “promised” it will affect far more – possibly in the region of 100,000 (one hundred thousand) per year.
Had the changes been implemented after an earlier campaign, ie in 2002, we would be looking at potentially 1 million families not only feeling those ‘significant changes’ but feeling thatwin, lose or draw, they have at least had their day in court and been dealt with justly.
It serves no productive purpose to dwell on the past – what is done is done. We must intellectually move on and be alert to any backsliding into the Soviet-styled ‘secret courts’ which we must hope we are soon to leave behind us.
We must not let our selves be deluded as to the impending logistical problems. These take the form of the Civil Service which whether they actually deserve it or not, are forever standing in the wings ready to plunge, Brutus-like, a dagger into the back of any noble cause.
The fact that Chris Grayling seems to have overcome, if temporarily, the perennial obstacles (“Ahh, yes Minister, but . . . “), that civil servants always seem ‘magic’ out of thin air says much about his capabilities (cynics might say that they might be biding their time).
The one redeeming feature this time around is the impact of the economic recession on matters. Minister are under harsh orders to cut Departmental budgets to the bone. This will inevitably cause grief in areas of the populace and benefits are cut and services reduced. Is this lingering sore a battle that will cost, in the broadest terms, just too much when there are more immediate battles to fight ?
However, there is treason to believe that this move is irreversible process. Britain is bound by EU treaties to apply a fair system of justice and to avail all of a ‘right to a fair trial.’ included in this human rights treaty is the right to family life and a host of supportive ‘Directives’ which have outlawed Britain current position (but no one has yet had the nerve to call it such).
Britain which once lead the world and much of Europe in honour, fair play, and humans rights has presently been well overtaken by other nations.
From a British man’s perspective it is ironic that courts recognise the rights of terrorists and the judicial systems obligation to conduct a fair trial replete with an appeals procedures, as personified by Abu Qatada, yet refuse to extended acknowledge rights to indigenous men, fathers and their children.
Please tell us that divorcing men and separating fathers will have the same human rights and the same right to a fair hearing which Abu Qatada extracted from the British legal system with ease ?
Currently, Britons are daily denied their basic human rights in the Family Division and this can be traced back to 1968 when an Act was passed prohibiting press coverage and the public.
On what scale is this happening ? Well, in ‘round pounds’ it looks something like this: there are roughly 120,000+ divorces pa in England & Wales; of these approx. 100,000 will involve children; that make a weekly total of approx 2,000 families with children ‘orphaned’ by the State.
Courts work a 5-day week so the resulting daily number is 400, and since there are 1.5 children on average to each divorce, the final figure is 600 children a day.
Over a ten-year period that amounts to 1,560,000 children, and yet we spend less time legislating for them than we do for same-sex marriage where the affected number gaining from the legislation is in the region of a few thousand.
It is yet another occasion of paying ‘lip service’ to a topic the public feels is very important, child safety, and ignoring public opinion when vested interests in government want to see a change which will benefit their personal lifestyle.
Welcomes though a ‘review’ of the Court of Protection may be, we can only hope it will be more than just a ‘paper tiger’ review and will lead to serious changes that acknowledge our nation’s Human Rights obligations towards all its citizens – and not just those extended to the likes of Abu Qatada
The first true test will be for this vaunted “transparency” is how successful it is at revolutionising ‘public law’ cases and how ‘forced legal adoptions’ are handled.
The second true test will be to see it move into ‘private law’ and whether that is achieved seamlessly.
Dwarfing the mental health and adoption categories is that of ‘custody’ after a divorce or separation, termed private law cases. If that proves revolutionary and for the better then congratulatory letters to Chris Grayling MP for ushering a new era are most certainly in order ?
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 In the past decade there has been a litany of test cases where individuals, usually disabled in some way, have asked for permission to die by their own hand.
 A proverb which makes the observation that turbulent changes do not affect reality at a deeper level other than to cement the status quo.
by Robert Whiston FRSA
Based on an article submitted to Straight Statistics (Nov 19th 2010).
See also “Trimming legal aid” (May 2013) http://mensaid.wordpress.com/2013/06/27/3/
The savagery of the proposed Legal Aid cuts announced this week (15th Nov 2010), will be wonderful news for some. The proposed cuts of £350m a year until 2015 should result in cumulative saving of £1.75 billion.  It is estimated that there will be 500,000 fewer civil cases as a result (it currently helps over 2 million people).
Every cloud has a silver lining and for some sectors of society this particular cloud has a huge silver lining. The expected reduction will adversely affect a range of social issues from divorce, to housing, employment, immigration, debt and many welfare benefits. Projected saving of £600m per year are envisaged which cumulatively will result in £3.0 billion. Twenty years of costly liberalised law reforms could well be stopped in their tracks.
Legal Aid was set up in 1949 along with the NHS, NCB and the Welfare State. In 1999 it came under the control of the Legal Services Commission, though it is still referred to as ‘legal aid.’
Threats to cap legal aid began as long ago as 1999 with further rumblings in 2001. A governmental reform of legal aid was well under way in Nov 2006 with the publication of “Legal Aid Reform: The Way Ahead” which proposed cuts of £12 million in legal aid that was mostly spent on families and children. 
Since 2006, there have been over thirty separate consultation exercises on legal aid (approx the same as the number of public inquiries into horrific child deaths, e.g. Victoria Climbie). Each tentative reform involves an ever larger sum to be saved. Three years later, in July 2009, plans to reform the legal aid system included a cut of £200 million in its budget. 
|Fig 1,Cost of legal aid (2007)|
|Country||Unit cost Per person|
When Jack Straw was Minister of Justice, in September 2007, he too indicated that cuts could have to come – sooner or later. In that year legal aid cost the taxpayer £34 per head compared with legal aid in other jurisdictions such as New Zealand where costs were £10 per head.
Historically, the bill for providing legal aid rose from £138m in 1980 to £2.2bn (i.e. over £2,000 million), in 2005. Much of this ‘astonishing’ cost hike Jack Straw laid at the door of “lawyers and their incomes.”
New Zealand’s legal aid programme went into melt down in 1999 when its bill neared $100 million. Cost-cutting was the only viable option facing Government. It is a prime example of ambition getting ahead of the ability to pay for social measures.
For its tiny population (only 4 million), New Zealand’s spending rose from $28.7 million in 1993 to $68.5 million in 1998. Commentators agreed at the time that most of the surge in costs was due to a raft of social legislation enacted over the previous 5 to 10 years. New Zealand was forced to sell off all its combat aircraft and it’s fighting ships.
Predictions are always fraught with dangers but it is likely that in two key sections of society the cuts will have profound effects. The more obvious one will be in the criminal law where the poor will not get proper representation, but even the middle class (who have always found litigation prohibitively costly) will be further adversely affected.
However, it is the second less obvious civil sector of marriage and divorce where major savings are to be gained. Helpfully, statistics for divorce are divided into which gender petitions for divorce (Fig 2).
The trend among men to dissolve a marriage has been constant over the decades at around 42,000 per annum. By contrast, women have sued for divorce in greater numbers, i.e. 100,000 + pa, and for many more years than is shown above in Fig 2 (peak years have seen the number of Total Divorces reach 186,000 pa).
It is only in 2005 that a significant fall was seen from 105,133 to 96,608 – a time when arguably the manifestations of the current economic crisis were first becoming apparent in family households. The fall after 2004 can be better seen in graph format (see Fig 3). Women are represented by the yellow line in Fig 3 and it is this line that we should expect to see fall even further.
The cost of divorced men is minimal to the treasury but the cost of divorced women has always represents a huge drain.
Left: Fig 3
In 1981 and in 1992 the number of Total Divorces was 176,162 and 179,103 pa respectively – the majority activated by women.
In spite of men overwhelmingly being far more numerous as criminals and thus requiring legal aid to represent them, the monetary amount spent between the two sexes was as follows: 
- Women 60.8%
- Men 39.2%
The decline in the numbers divorcing over the past 10 years has been ascribed to fewer couples marrying (Fig 4). Numerically, divorces had ‘plateau’ed’ in the 1990s at around 100,000 pa with the ‘step change’ happening between 2004 – 2005 (see Fig 2 above).
By 2007 the divorce ‘rate’ in England & Wales fell to its lowest level since 1981. This ‘tail off’ in divorce numbers (from 2005) may well be accelerated as legal aid is cut off.
Right: Fig 4
The number of men petitioning for divorce may not fall – or fall only slightly – in future years. It is more likely that the greater fall will be among women who will be dis-incentivised from seeking a divorce.
The consequences of less money being available to spend on divorces financed by legal aid will have cost savings across the other state Welfare Benefits payments.
At 1996 prices it was estimated that single mother households (SMH) – around 45% of whom were divorced mothers with children – cost the tax-payer £11 billion per annum and when hidden welfare subsidies, e.g. Housing Allowances, Social Fund etc, were added in, the total bill was approx £16 billion pa.
Above: Fig 5
The key feature of this expenditure was that it was unsupported by tax receipts, i.e. it as made to a sector of society which paid no taxes to off-set the liability. A later estimate, in 2000, by a parliamentary group put the figure slightly higher at £15 billion.  If those totals give a guide as to inflationary nature of welfare state costs for ‘social measures’, then the cost of welfare allowances could, by 2010, be double the 2000 estimate.
The tough measure of cutting legal aid will have knock-on effects beyond it immediate impact on divorce. It is likely that state spending on ‘remedial’ programmes for children of divorced couples will be less as there will be fewer children from disputed family units.
If this happens criminality is likely to shrink and academic achievements at school are likely to expand. These are the likely downstream benefits, or ‘outcomes’, that will become visible within 2 to 3 years (see Appendix A).
In the longer term this might bring back ‘confidence’ to the marriage markets which for 40 years have been thoroughly undermined by legislation expropriating assets in favour of one of the parties (Fig 5 above).
The resulting effect may see a slight increase in the numbers marrying and a reversal of the general trend in first marriages shown in Fig 5. If divorces do decline then it is probable that re-marriages (which never reached 1969 promises) will also suffer a decline.
In addition to the cost of legal aid there is also the cost of administering such a regime. In June 2009 the Commission cost £124 million pa and the cost of handling over half a million phone calls (566,085), in 2009 was put at £13 million, i.e. £6 per call, with the average hourly rate being “roughly £46 an hour.”
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 The proposas are contained in a consultation paper “Proposals for the Reform of Legal Aid in England and Wales”, at http://www.justice.gov.uk/consultations/docs/legal-aid-reform-consultation.pdf see also “Review of the Costs of Civil Litigation”, Lord Justice Jackson, May 2010
 “Legal aid cuts: How you could be acquitted and still face huge bill for costs” Frances Gibb, Legal Editor, July 17, 2009 http://business.timesonline.co.uk/tol/business/law/article6717289.ece
 Source: LSC (Legal Services Commission) Equalities Annual report, 2004-05, Clients applying and receiving civil representation by gender for 2004-05,
 “The Cost of Family Breakdown”,” Lords and Commons Family and Child Protection Group, 2000.
Robert Whiston FRSA (circa March 2002)
“Sacrificial Lambs – Britain’s post-war holocaust”
a response to
‘Promoting Inter-Agency Working in the Family Justice System’ – a Consultation Paper issued by the Lord Chancellor’s Dept, March 2002 (Code CO 04/02).
The Consultation Paper, “Promoting Inter-Agency Working in the Family Justice System” published by the Lord Chancellor’s Dept in March 2002 (ref. CO 04/02), gave fathers groups the rare opportunity to convey just how dysfunctional the Family Court system had become.
Tribute has to be paid to the authors of the Consultation Paper for their candour and openness in recognising and itemising the systemic failings they found. In the past there had always been the temptation to ‘gloss over’ shortcomings of the existing regime and only in later years consider amending or scrapping a failing system – a classic example being “Support Services in Family Proceedings – Future Organisation of Court Welfare Services” (July 1998).
So in many ways contributions from fathers groups were superfluous to this most crucial of on-going debates and could even be said to only serve to confirm the state of disarray to be found in all Family Courts dotted around the country.
Although the recommendations contained within “Policy Appraisal for Equal Treatment” (Nov 1998) were supposed to have been adopted, i.e. ministries and ministers were to make themselves aware of the impact of legislation and Gov’t policy on the two sexes (and genders), this operated more in the breach than in the actuality as far as men and fathers are concerned. This situation still pertains to this today, in 2012.
The detailed questions and answers of the Green Paper are shown on the adjacent blog page.
Perhaps the most telling sentence in the 2002 Consultation Paper was that asking whether it was:
- “. . . . realistic to expect committees to consider family-wide issues rather than the current children focus?” (Question 45).
To shape policy outside the context of the family or to formulate policy by reference to non-family units is probably the reason why Britain’s social engineering over the last 30 years has been so disastrous.  In England we have struggled to use phrases and terms that incorporate those households where dependent children, i.e. under 16, are present but not two parents. The US Census Office has solved this dilemma by the adoption of the term “non-family unit” which is applied where a nuclear family does not exist, i.e. a mother or father without a partner. This then allows accurate analysis of a well-defined sub-division conprised of many sub-groups.
The Consultation Paper examined whether the various local, regional and national coordinating committees that surround and support family courts were ‘fit for purpose’ and in most cases found they were not. The unpublicised structure in 2002 was as follows.
- Family Court Business Committees (FCBCs)
- Family Court Forums (FCF)
- Court User Groups
- Ad hoc groups
- The Lord Chancellor’s Advisory Board on Family Law (ABFL)
- The President’s Interdisciplinary Committee
It is clear from feedback received that the legal profession is not itself entirely satisfied that the present course is ideal. Ethical and fundamental philosophical questions have been raised which have been disseminated in the popular press as concerns in the growth in the Nanny State.
The ethical and fundamental philosophical again surfaced in 1999 and 2000 with the setting up of the Advisory Groups of the not yet conceived CAFCASS. Though their deliberations were kept confidential from all the other groups, it was clear that the legal and judicial groups had reservations about just how far the state is authorised to intervene, or interfere, in a private arrangement of any family’s affairs before it could be accused of “nationalising the family”.
Destructive good intentions
There is an almost instinctive desire at many levels in society to “do good” and to “save people from themselves”. Much of it is well placed and vital – but when and where is the limit reached ? Good intent is one thing but wrecking an entire family’s happiness is another. Deserved or not, the legal profession is increasingly seen as the culprit in the later scenario.
Well meaning intentions can lead us to make amendment after amendment in desperate attempts to get the system to work. It has proved wholly irresistible over the years to add just one more layer of legislation onto the existing situation to cure a perceived delinquency in the system. Unfortunately, after 10 or 20 years, when we stand back to survey our handy work, we realise we have created a monster that is out of control.
Firstly, the public must have confidence in the law if they are to respect it, and secondly, to comply with court orders made. This is rapidly ceasing to be the case.
The same ethical and fundamentally philosophical again surfaced in 1999 and 2000 with the setting up of the Advisory Groups for the not-yet-conceived CAFCASS.
The flaw in this reform regime was the lack of communication between the separated sub-groups and the absence of dialogue between the specialist groups. Though their deliberations were kept confidential from all the other groups, it was clear that the dedicated “legal and judicial” sub-groups had reservations about just how far the state should be authorised to intervene, or interfere, in a private arrangement of any family’s affairs before it could be accused of “nationalising the family”.
Butler-Sloss’s recently admitted in a newspaper interview that she had been wrong in her ‘feelings’ over the decades;
- “In 1970 I don’t think we recognised the importance of a child having both parents …. My thinking has certainly evolved.” – Sunday Times, 17 Feb 02.
Although judicial ‘feelings’ are dealt in some detail at Question.12 (see below), it is commendable that she publicly accepts that she was un educated about the importance of a father in a child’s life and had been for so may decades.
Just how many hundreds of thousands of cases have been wrongly decided due to this level of ignorance and the consequential damage to children, can only be imagined.
We estimate, based on the number of divorce and the number of children involved, that approximately 3.7m children have been affected by Butler-Sloss’s rulings 
Denning has been the fashionable ‘darling’ of English jurisprudence and the doyen of law lecturers. His views have become the conventional wisdom. He sought to do his ‘creative’ best (a phrase used by his peers), for those in court before him. in effect he bent the law to reach the outcome he wanted. But is ‘bending’ the law, and in some cases arguably its inversion, to meet the desire of the one of the parties wholly beneficial or sustainable in the long term ? We would argue it is not. We would argue the law is an absolute, not a relativism, which citizens ought to be able to rely upon in time of need.
We would advocate a return to a more Diceyian approach to the law where certainty and adherence to clear-cut rules would reinvigorate respect in the law.
Dicey was very much concerned about “the modern threat to freedom in the incursions that were being made into The Rule of Law”. At the core of the Anglo-Saxon conception of rule of law is the idea that the discretionary power of the government should be limited:
- “. . . . whenever there is discretion there is room for arbitrariness, and . . . in a republic no less than under a monarchy discretionary authority on the part of the government must mean insecurity for legal freedom on the part of its subjects” (Dicey, 1982, p. 110).
The solution to this problem, say liberal democrats, is the rule of law. But is it ?
To emphasise the bedrock principle, Dicey’s rule of law means, “in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even wide discretionary authority on the part of the government” (Dicey, 1982, p. 120).  According to Professor Keeton (The Passing of Parliament), Dicey concluded that:
- “. . . the twin pillars upon which our system rests are the sovereignty of Parliament and the supremacy of the common law, administered in the ordinary courts independent of the executive over everyone within the realm, whether public official or private citizen.”
At the moment the interpretation of matrimonial law is extremely subjective. At one given moment it can mean one thing and at another moment quite the opposite. Some sections of statute law are always used and others which could lessen the situation are never allowed to be invoked, e.g. MCA, sect 25 is infamous. There are no twin pillars and no observing private citizens allowed. Matrimonial law is implemented by Family Courts which are closed to the public and all the judgments are kept secret. There is thus no transparency, public confidence or respect.
Arguably Britain has the most secret of family courts in the English speaking world but other English speaking jurisdictions face the same confusion and disrespect, for example Israel still has divorce laws based on pre-independence British law. We suggest it is principally for the same reason, i.e. Denning, who toured and influenced many English speaking countries. Can anyone, even for a moment, contemplate his views of amending intent for each case, transferred to the criminal courts ? Or to magistrates courts dealing with motoring offences ? The result would be chaotic if not farcical.
One truism that recent events in the commercial field has shown us is that when rules are bent, avoided and even broken, the casualty is always the general public. Both Enron and WorldCom had to comply with layer upon layer of demanding legislation but were still able to evade scrutiny of their dishonest and misleading transactions. Without morality, sense of purpose, prudence and guiding principles, their reputation is now forfeit forever.
From a CAFCASS officers’ point of view they feel that their practitioner experience is rarely taken into account in custody awards. What they see is a strong presumption ‘in favour of contact’ by the courts and that few contact applications are refused (this is borne out by judicial statistics).
That said they realise that the Non-Resident Parent (NRP), i.e. the father, does not always get the amount of contact they want in their re application.
To précis a senior CAFCASS manager at the time:
- “. . . .The precise percentage of cases where there are allegations of DV is debatable and this varies from research project to research project & depends on what sample is being examined and how DV is defined.
- The cases CAFCASS files reports on are the ‘intractable minority’ of cases (most do not come our way at all and of those that do, the majority reach agreement) and clearly the extent of DV that features in these ‘report’ cases will not be typical of all those going through separation & divorce.
- To me, those that suggest possible damage to children are those that involve abuse over a period of time rather than a one-off fight during the stress of separation. CAFCASS does not meet the ‘typical’ cases of separating or divorcing parents, so we cannot comment on them in terms of DV, either in terms of percentages or in relation to gender.
My interest and that of CAFCASS with those cases we do meet, is not so much whether the perpetrator is male or female or about percentages, we are not interested with gender issues which we feel detract from the central issue; it is more about whether children are at risk and what the evidence for that is. We like to view each case on its merits, rather than application of an inflexible formula of one sort or another. The presumption in favour of contact seems fine as long as it does not blind us to the overriding need for child safety and well-being.
- My understanding from research – and it fits with my experience – is that well over 20% of cases that get to a CAFCASS practitioner to report on, feature allegations of DV, not always, but mostly
made by mothers and that DV is admitted or found proved in about 20% of cases [ 20% of 20% = 5% - RW ].
- That does not necessarily mean that DV being ‘established’ means contact should not take place. It obviously depends on the nature and extent of DV, the child’s views, the resident parent’s views and professional assessment. There are some clear-cut cases, but contrary to what some may think, however well qualified practitioners or experts are, they are faced with a wide grey area of cases, where there may be risk, but it is difficult to assess or quantify & it is not an exact science.
- Clearly there are those that feel CAFCASS does not take DV seriously enough and courts are making too many contact orders and also a lobby that seems to feel CAFCASS has been subverted by the women’s movement and are involved in the refusal of contact at the slightest hint of DV. We meet some very bitter and distressed parents and the truth in my view is that overall, the bitterness of the on-going negative relationship between the parents probably does more damage to the child than anything else and needs considering when deciding on contact.
‘Consumer research’ shows that parents view CAFCASS practitioners in terms of court order outcomes. If the order is in favour of a parent’s application, that parent thinks we are professional, objective and helpful; if the order is not in a parent’s favour, we are perceived as unprofessional, biased and unhelpful. At least 50% are therefore always unhappy with CAFCASS (see ‘Families
in Conflict, Perspectives of Children and parents on the family Court Welfare Service’, Buchanan, Hunt, Bretherton & Bream 2001).
If adherence to rules rather than principles led to the collapse of corporate giants what will it do for the law ? Both Enron and WorldCom lost the confidence of the market and their share price collapsed. In child custody cases the public must have confidence that courts are demonstrably “doing good” if they too are to avoid collapse. Our proposition is that family courts have now reached that rock bottom where they are repugnant to the public.
Addendum: more recently still is the N.O.T.W. media collapse; the Murdoch saga; the phone hacking scandal; police inaction; police bribery; MP expenses and the murder of Amanda Jane “Milly” Dowler. All these instances had not only elements of dishonesty and the bending of the law but also a suspension of adherence to rules.
In the field of matrimonial and custody laws we have seen at the same time as an expansion of legislation the demise of principles underlying both areas. Heads of Policy are now so infrequently referred to that many commentators are unaware of their role, let alone their importance.
Do we want a society composed of ‘fatherless families’, or do we want the ‘norm’ to be for every child to know and grow up with its father ? If the latter is the ideal then what are we doing to make it happen ?
We see the improper interpretation (by all agencies) of the Children Act 1989 as the pivotal to any potential judicial collapse in the near future.
Three forces came together to block the intention of Parliament when it enacted the 1989 Children Act. At that time, Members of Parliament were of the opinion that parenting in general and fathering in particular was important, and so the Act stated that after divorce, shared responsibility should be the ‘norm’. The Act even allowed for shared parenting or joint residence orders. That implied a move away from the usual nature of England’s adversarial system where, in a divorce action as in any other legal action, everything relevant should be given as a trophy to the victor.
In passing the Children Act, Parliament asserted that a child should retain contact with both its parents; the outcome of a divorce should be a draw rather than a victory. Faint echoes of this can be found in another consultation paper “Supporting Families and Children First”.
Child’s “best interests”
It is worth noting that Canadian Senator Anne C Cools has researched the mantra “The interests of the child come first”. She has come to the conclusion that in the last twenty years, its interpretation has been altered from its obvious meaning to it now meaning that the interests of the mother should come first. In a recent speech Butler-Sloss explicitly stated that only by putting the mother’s interests first, could one then put the child’s interests first (Regents Park Conference, Nov 2001).
The second factor leading to the present situation is the adoption of primary articles of faith that males are inherently violent, abusive and a particular danger to children. In particular, fathers represent the main threat to the safety of their children. The family home is now considered a more dangerous place for mothers than the street, and this probably applies to children as well.
Both assertions run counter to the actual statistics namely that children are safer when a man in present in the household and that women suffer far less injury, of any type, when married and at home.
The third factor leading to the present crisis resides in the entrails of Government. The first hint of this problem was a letter to Chris Smith MP from Harriet Harman then Secretary of State, that it was “administratively inconvenient” to deliver various state benefits intended for fathers.
It has now transpired that the “administrative difficulty” that caused Harried Harman to insist on continuing to discriminate against fathers resulted from the government’s incompetence over its computer system for paying these benefits. The Sprawson Report says that splitting the relevant benefits as intended by Parliament when parents have separated must be resisted because the government’s 1975 vintage computer system would not be able to cope. Previous attempts to increase its versatility have been traumatic.
The satirical magazine “Private Eye” has linked the failure of government computer systems with corruption. At a time when the US Administration was investigating corruption which involved the Florida company EDS ‘buying up’ US politicians and then installing its computer systems in government, it reported that EDS retained both Conservative and Labour British MPs as “consultants”.
Addendum: the scandal of MPs fiddling their parliamentary expenses therefore has something of a heritage
The “consultancy” fees paid to British MPs by allegedly corrupt US computer companies, inc EDS (founded by Ross Perot), are said to be “tiny” and is reportedly limited to only a handful of Conservative and Labour MPs. The computerised systems each cost tens of millions if not billions of pounds. Should even a 1% bribe, reward or incentive have been offered, it would constitute in ‘hard’ money a very tempting £100,000 (£1,000,000 x 1%)
Addendum: In 2004, EDS was criticised by the UK’s National Audit Office for its work on IT systems for the UK’s Child Support Agency (CSA), which ran seriously over budget causing severe problems. The system’s rollout had been two years late and following its introduction in March 2003 the CSA was obliged to write off £1 billion in claims, while £750 million in child support payments from absent parents remained uncollected. An internal EDS memo was leaked that admitted that the CSA’s system was “badly designed, badly tested and badly implemented”. UK MPs described it as an “appalling waste of public money” and called for it to be scrapped.
A year earlier, in December 2003, EDS lost a 10-year £3 billion contract to run Inland Revenue IT services after a series of serious delays in the payment of tax credits, the contract instead being awarded to the company Cap Gemini. EDS had operated systems for the Inland Revenue since 1994 but the performance of its system had been low, causing late arrival of tax credit payments for hundreds of thousands of people
In 2006, EDS’ Joint Personnel Administration (JPA) system for the RAF led to thousands of personnel not receiving correct pay due to “processing errors”.
Research in both the UK and the US found that those children who are “fatherless” are much more likely to end up in jail, become drug addicts, become pregnant teenagers, etc. The final bill to the country for fatherlessness was, and will remain, massive.
Can we allow ‘administrative difficulties’ or the alleged complications of shared parenting to stand in our way when it was previously the ‘norm’ ? (Appendix A).
Any work contemplated by any policy shapers in future must look at “the big picture” and see how its role fits in with, and complements, other institutions in society. WorldCom and Enron took their eyes off the ball. po;icy makers must not allow layers of laws to blot out the underlying principles of civilisation and its bedrock – the family.
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Letter from Lord Irvine to Estelle Morris MP regarding shared parenting but which precludes consideration of those countries that have enacted shared parenting. Also omitted is the dynamic created when a presumption shared parenting exists and the enforcement in law using a standard format. Indeed, Lord Irvine apparently overlooks Britain’s history of ‘joint custody’.
FROM THE RIGHT HONOURABLE THE LORD IRVINE OF LAIRD
HOUSE OF LORDS, LONDON SWIA OPW
11th March 2002
Your ref: L0639/jb
Our ref: 123698
The Rt Hon Estelle Morris MP
RE: Mr Leigh, 2 Station Street
‘Thank you for your letter of 13 February on behalf of your constituent Mr Lee enclosing a summary of the principles of Equal Parenting.
It is generally accepted that children benefit from a continuing relationship with berth parents. The Children Act encourages divorced or separated parents to make their own arrangements for their children’s future without recourse to litigation. Many parents achieve this successfully, sometimes with the help of mediation. By its very nature equal or shared parenting requires a high degree of co-operation between the parents and is an arrangement most often only reached between the parties privately.
Cases that reach the court arena have inevitably gone beyond the stage where this level of mutual co-operation can been achieved. The Court will reach its decision after considering all the evidence with the welfare of the child as its paramount consideration. If the parties agree during the course of proceedings, an order for shared/joint residence is only one of the options available when the court considers tire: children’s future. In those circumstances, in line with the principles of the Children Act, the Court will also wish to consider whether it would be better for the children to make air order than to make no order at all. Shared residence orders imposed on the parents after contested proceedings are unlikely to operate successfully and could be disruptive for the children.
My Department is currently engaged in discussion with the Coalition of Equal Parenting on the question of shared parenting. The Children Act Sub-Committee of the Lord Chancellor’s Advisory Board on Family Law (CASC), published their report on the facilitation and enforcement of contact following public consultation on 8″ February 2002. The Government will be using the opportunity presented by the report to consider the whole issue of the arrangements for children on family breakdown. including shared parenting.
I enclose a copy of this letter for you to pass to M Lee, should you wish.
Yours ever ,
 Where a non family unit is defined as a “single mother with child(ren)”, i.e. without a father, but excluding widows and widowers. See also US Census data definitions.
 150,000 divorces pa x 70% who have children x 1.8 average children per divorce x 20 years = 3,780,000.