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.
E N D
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.
Sacrificial Lambs - Britain’s post-war holocaust
PART 1 - Background & Terms of Reference.
Questions posed to respondents by the Green Paper.
Question 1. Are there other types of family justice related committees we have omitted ?
Answer. No. We cannot recall any committees that have been omitted.
Question 2. Which committees function well in terms of bringing about improvements in delivering / identifying best practice and why?
Answer. We do not have first hand experience to comment on which committees’ function well, and why.
We suspect that the opinion, expressed in the Consultation Paper, regarding why some committees fail to function adequately is valid, ie they are unrepresentative, have lost their direction and purpose (pp 16 – 18).
Those that are a ‘closed loop’ or are ‘politicised’ in nature, e.g. domestic violence, would also fail, we suspect, unless they have expertise or commitment to bind and sustain them. We suggest that the composition of committees may not be fully representative.
It would be illuminating to know how many committees have representatives from men’s or father’s organisations.
PART 2 - Problems with the Current System
Question 3. Do the problems we have identified regarding the existing arrangements reflect your experience?
Answer. As a men’s civil rights organisation we have not been party to, or invited to join, many of the forums mentioned. We do not, therefore, have the first hand experience necessary to comment.
However, we have been involved in other committee work and have some experience in liasing and negotiating with Whitehall depts. From this we feel that the headings listed on pages 16, 17 and 18 are very reminiscent of similar failing situations we have encountered.
We would underscore the comments made in “Overlapping Membership”. There are occasions when the same people are delegated to several groups. A situation then arises comparable to someone having 129 non-executive directorships. This is particularly annoying when the person has either “an agenda” or is not well acquainted with the topic.
Unfairly perhaps, one cannot escape feeling that for some delegates a plethora of meetings represent a “nice little earners” more than an opportunity to help their fellow man or make a positive contribution to society.
We echo, and loudly, the sentiments outlined in “Unrepresentative Membership”. Some Whitehall depts but many legal bodies still remain blind to 50% of the population (men) and so never consider them for inclusion.
Question 4. Are there other problems we have not identified?
Answer. Yes, but only in regards the exclusion of men and fathers which we have brought to your attention in our answer at Q.3, above.
Question 5. Which, if any, of the problems do you think is the most important and why?
Answer. We cannot ‘rank’ them as we feel they are equally important. We would, however, point out the shortcomings listed in “Overlapping Membership” and “Unrepresentative Membership”. We agree entirely with the sentiments expressed in those subsections. The destructive dimension of petty squabbling over refreshments costs etc should not be lightly dismissed.
Arguably, when viewed in the round, Britain’s social policy initiatives have achieved little positive good in 30 years, certainly less than was expected of them. What observed movement there has been seems to be of the negative and disintegration kind. Could this be in part due to the exclusion of 50% of the population, ie men and fathers ?
Question 6. Have any of the groups in which you are involved taken steps to address these problems, e.g. merging local groups, inviting other members, having election procedures or do you have suggestions you wish to raise here?
Answer. Our non-involvement / exclusion means we are unable to answer this question.
Question 7. What level of administrative support do you think is necessary to make local committees work effectively?
Answer. We envisage that in terms of capital equipment or premises there would be no budgetary demands. Administrative support would be limited to ancillary needs and funding. Funding we suggest is likely to be the major consideration. To avoid the distraction and squabbles mentioned in the Consultation Paper and itemised at Q5 above, we suggest that the overall concern for the administrative support and funding should be taken out of the hands of those participating. We suggest the cost of room hire, attendance fees, travel, refreshment etc, should be provided by the LCD or from the MCC budget, or regional groups such as the relevant Law Society or the relevant County Council (or a combination of the above).
Question 8. Do you agree that the existing arrangements need to change?
Answer. Yes. If pages 16 – 18 of the Consultation Paper is the officially accepted version of what happens in our system of family courts, then Mr Thorpe and Ms. Winterton can only imagine what impression is given to those actually at street level.
Our own experience of assisting men and fathers in trying to cope with the Byzantine convolutions and black art mysteries of the court indicates that something needs to be done urgently.
Anything that seeks to bring back ‘justice’ and equality into family law is to be embraced. Anything that helps us to pick up the pieces – or reduce the number of pieces and tie we have to resurrect live after fathers have been steamrollered by the courts – is an initiative we welcome.
For similar reasons we look forward to the changes proposed in the MCC. 
The committee structures must change. However, it will mean significant changes to the way law schools broach the subject to student barristers. At present pupils are warned, “There is no ‘law’ in family law”.
PART 3 – The Way Forward
One overarching national Council
Question 9. Do you agree that there should be one overarching Council for the family justice system? If not, what alternative do you recommend?
Answer. The concept has an overall simplistic attraction. This is not to infer it is wrong, but like any ‘single fortress’ policy it is vulnerable to capture – the prime example being that of the Maginot Line.
It would probably be the most efficient and effective but to avoid being left totally defenceless, at some point in the future, a counter-veiling force should be created as a check or balance to any excess.
An overarching Council, or single fortress’ policy, could also fall victim to capture from within. That is to say, by the very people who presently make so many initiatives and committees ineffectual.
For any overarching council, there must be public safeguards, e.g. an easily invokeable ‘trip wire’ to stop excesses. Another disadvantage is that slight deviations, once accepted as mainstream, become exaggerated with the passage of time and too entrenched to deflect. This results in unwanted and unpopular policies by a committee that is ‘out of touch’.
The present system of court committees and lobbying for change does not have this trigger mechanism either at court or LCD level. For instance, what limits or counter measures can be imposed on the Law Commission ? What avenues are available for the ordinary citizen to make his voice heard ?
We are also concerned with the overly generous usage of the word ‘outcomes’, which might lead to future misunderstandings. ‘Outcomes’ is a specialist and narrow term applied to results in a child’s life 10 or 12 years after experiencing (in this case) processing by the court regime. There is a danger that the word ‘outcomes’ is being applied to a scenario whereCustomer Satisfaction Index would be more appropriate and accurate.
An alternative, if the paper seeks to find out how users ‘feel’ they have been treated, might be to adopt the term Court Process Outcomes (CPO) or Court Process Consequences (CPC) Court Process Experience (CPE).
Question 10. What do you consider to be the advantages and disadvantages of incorporating all the existing committees into one structure?
Answer. Our explanation, at 9 above, answers the question regarding the advantages and disadvantages of the proposed structure, ie single fortress policy.
Question 11. Do you agree with the title Family Justice Council?
Answer. The name appears as attractive and as descriptive as any we have managed to contrive, though through bitter experience, we remain critical of the word ‘justice’ which in our view is notable by its absence in the Family Division.
Question 12. Do you agree with the proposed areas in which objectives could be set for the Council to achieve?
Answer. Yes. Our only caveat is that court staff, judges, solicitors and barristers together with ‘care’ professionals often have only a faint knowledge of the custody reverberations.
“Listening to Children Views” by Ann Quigley (Rowntree) is just one of several books we could choose to make our point. She observes:-
- 1). The judges expressed this as follows: ’its works on gut reaction’ … ‘You just get that feeling’ … ‘the totality of it all just gives you a sense of unease’. (Murch, 1998).
- 2). “Interestingly, when Murch et al, asked the judges they interviewed..… only 17% said they would consider speaking to the child”
- 3). “District judges rarely take action after scrutinising the written details ….” “…. but did not feel the present system was at all adequate …” (Murch, 1998).
- 4). “ ….. there is general scepticism among district judges and solicitors as to the value of the statement of arrangements…”
And in regards Court Welfare Officers’ competence (now under CAFCASS re-titled as Family Court Reporters) she reports :-
- a). “They [James & Sturgeon-Adams, 1999] found that there is a lack of clarity among CWOs and judges………..”
- b). “ … CWOs justified their practices by reference to research that they were aware of, though they were unable to cite it, nor were they aware of any criticism of this research”.
- c). “Other CWOs disagree; they feel they have not been adequately trained to work with children…” (James & Sturgeon-Adams, 1999).
- d). Sawyer found that CWOs were under pressure to bring about a settlement of disputes on a pre-stated model ….. ”
- e). “ … lack of experience and training in dealing with children …..” (Hunt & Lawson 1999, p38).
- f). “Sawyer found that CWOs were under pressure to bring about a settlement of disputes on a pre-stated model ….. ”
The findings of Quigley and of the other researchers she quotes strongly echo our first hand experience of dealing with courts and CWO’s.
Far too often they are not fully acquainted or trained in regards the most recent and relevant research concerning children’s developmental needs, e.g. PAS. (Parental Alienation Syndrome). Knowing how to bring this knowledge to their attention while being held outside the ‘magic circle’ is difficult.
We have come across few legal advisors who understand the measurement of ‘outcome’ 10 – 15 years after being processed by the divorce courts or its relevance to teenage pregnancy, street crime and criminal court appearances.
We expect High Court judges to be well versed in the law and certainly well above average but even they occasionally reveal a shocking ignorance of basic law. 
We should not therefore be surprised with lower courts display even graver ignorance of the law.
We may no longer be surprised but should we tolerate a compounding of errors when interpreting basic statute law or a diminution of equality before the law as we spiral down into the much more numerous lower courts ?
The three objectives of reducing delay, minimising costs and clear procedures are to be warmly welcomed. We suggest that adopting Shared Parenting, as the default would enable these ideals to be achieved very quickly.
Question 13. Do you have other suggestions in which objectives could be set?
Answer. Yes. (1). The implementation of Shared Parenting instead of Residence and Contact and. A return to joint custody as the ‘norm’, rather than ‘the exception’. Children, in the post Children Act era, were supposed not to be used as “hostages to fortune”. However, the Dept of Health sent out guidance letters to judges indicating that they should regard shared parenting as ‘the exception’ rather than the rule. John Bowis, the Junior Health Minister at the time, had specific responsibility for the Children Act at the time denied any improper action. However, the numbers of shared residence orders granted annually is now thought to be lower then joint custody awards made 1988-89 (see Appendices A, B and C).
This direct challenge to parliament’s intentions may have been prompted by the recently revealed Department of Works’ report. It admits that their original computer system (which was first installed in 1975) “lacks the sophistication and flexibility of more modern systems and cannot accommodate complexities [and] … is unable to process … the consequence of allowing for split entitlement” for all parents ie fathers. 
- (2). Accepting PAS (Parental Alienation Syndrome) as a condition and form of child abuse.
- (3) Recognising men can be victims of domestic violence and secondly in equal quantities as women. The diagram on page 22 depicting a domestic violence sub-committee will, we predict, be staffed only by women and will discuss only DV as it relates to women.
- (4) Facilitate the training of court officials and legal professionals by outside groups, e.g. ManKind. (see also our answer to Q.12 above “Listening to Children Views” by Ann Quigley). The training content should be made public and transparent to avoid a “NAPO / Birmingham 2 day course” scenario.
- (5) Make clear the connection between court conduct and custody awards with the later events in a child’s life ie ‘outcomes’. (cf. HOS 191 and Listening to Children Views”).
- (6) We are concerned that the focus of protecting “those [most] at risk” (p 21) will become “genderised”. We would emphasise that in the realm of DV there are as many men and fathers who are victims as there are women and mothers. We will be happy to provide international documentation in support of this position dating from the 1980’s to the present day.
- (7) The view that a court will hear the ‘voice of children’ causes us some concern. We feel this is a misleading and simplistic view (see Quigley, above, and at Q.12). The basis for our view is that advocates for divorce reform have, for over 30 years, successfully premised their arguments on the basis of relieving children from the distress of being dragged through the tensions of the divorce courts. To our knowledge few, is any, children have ever been so dragged. They are usually impotent and ignored bystanders. The judge is ‘informed’ through an intermediary who, it has now been established, is more cognisant of criminal behaviour than deciding the needs of a normal family.
Until CAFCASS staff are all retrained these tendencies will continue. Children usually have to make the best of what is determined for them by adults, may of whom may not even know what they look like, and have little grasp of their real preferences or choices.
Question 14. Are there any issues to which you consider high priority should be given?
Answer. We would recommend the following as high priority issues:-
- Shared Parenting, instead of contact
- Accepting PAS (Parental Alienation Syndrome) as a medical condition.
- Recognising that men can be victims of domestic violence in equal quantities as women.
If a key objective is that “all those who use the family justice system should feel their “voice has been heard …. ” this will be a particularly difficult ideal to achieve when 94% of custody awards are made in favour of mothers.  This figure could be interpreted as indicating that 94% of fathers are either unfit, not listened to, not asked, or simply ignored.
The alternative view is that all judges are grossly biased and see men in stereotypical terms. That in itself defeats the validity of claiming to make “the child’s best interests paramount”. A view is epitomised by Mr Justice Thorpe’s ruling. 
However, another interpretation could be the one expressed by Butler-Sloss at the RegentsPark conference in Nov 2001. She suggested that perhaps the child’s best interests could only be served when the mother’s best interests were first secured.
Question 15. Do you agree with the suggested terms of reference for the Council?
Question 16.. Are there other roles you think the Council should perform?
Answer. Yes, sponsoring radical ground breaking research, monitoring moves to incorporate imported legislation that allegedly works in the country of origin, e.g. the CSA.
Question 17. Do you agree with the suggestion that detailed work could be undertaken in subject based sub-committees?
Answer. Yes. This is the most practical approach to deal with volume of work and diverse opinions.
Question 18. Do you agree with the balance of the suggested agenda?
Question 19. Do you agree that the Council should meet four times a year?
Question 20. Do you agree that the Council should produce an annual report?
Answer. Yes. We think it essential for good governance and transparency. We believe that the experience of the Advisory Board on Family Law is an example to be admired and imitated but others such as CASC but must be more ‘open’ to users rather than practitioners.
We believe that too many practitioners are to be found on such boards and that this then leads to the institution becoming a creature of the professionals. This in turn blunts any chance for reform and skews change in a preferred direction.
The compositions of too many boards are either filled with “the great and the good” or by people with only ephemeral or nebulous experience. An example of the latter would be the present CAFCASS main board  (see also our answer at Q.3).
However sincere and well intended they may be, the assiduous absence of front-line-user experience is glaringly apparent. Whether this is attributable to the system of contracting-out the duty of finding the right people to ‘head hunters’, such as A T Kearney Executive Search, or is a function of the way such companies operate, is arguable. There is in any system scope and incentive for manipulation of staff selection if the applicants are known to the agency by other routes. In any event, deliberate obfuscation defuses crunch issues and blunts reform.
The perhaps undeserved impression gained is that many boards are impotent and their members arereally from accountancy, NHS or quantity surveying backgrounds who would be happier discussing those topics rather than family issues, however well intended they may be.
Question 21. Do you agree that there should be a biennial national conference?
Answer. Yes, but admission fees should not be an exorbitant. This would discriminate against smaller charities and VSO’s. Recent insensitive examples have seen published prices in the £400 region, which is too great a strain on most VSO’s income especially when they may have many conferences to attend several in any one year.
Question 22. Do you think the Council should have a limited term, after which its effectiveness should be reviewed?
Answer. Yes.We again point to the work and achievements of the Advisory Board on Family Law in this regard. If that board had been allowed to continue it might have become a ‘closed shop’ operating within a ‘closed loop’.
In contrast we highlight the shortcomings of the Law Commission which appears to have now turned full circle. One of its first recommendations was the abolition of the action for breach of promise. This has now, in effect, been re-instated under the associated person provisions of the Family Law Act 1996.
Question 23. Do you agree with the role proposed for the central secretariat?
Answer. In general terms we would agree. However, we would advocate an additional provision that would keep the council ‘fresh’ and ‘alive’. Provision should be made to adopt representations from outside groups. There should be some formal mechanism whereby outside groups would have a right to have a particular topic included in the agenda for discussion once a year.
By formalising this concept we feel it would reduce the opportunities for criticism and make the affairs of the chairman and council still more transparent.
Question 24. Which, if any, of the ideas for disseminating best practice do you think would be effective? Do you have other suggestions?
Answer. The first three proposals cited at para 52 are reminiscent of the closed loop situation we have had for many years. This method fails to reach out to users. In particular it leaves VSO’s, who advise users, without up to date information on any possible changes.
Today, the Internet is widely used and we would advocate extending its role.
NGO’s, VSO’s and practitioners may know how and where to access information but the unfortunate recipient of such deliberations, the user, does not. Any measures that increase the efficacy and efficiency with which charities and VSO’s can supply the end user with accurate information is to be embraced.
The Secretariat may therefore like to consider making copies of minutes, recommendations or the adoption of changes immediately available to interested organisations such as men and fathers groups. Consequently, we are pleased to see the possibility has already been favourably considered (para 56).
Until recently, too few Whitehall Depts have included men’s and father’s groups on their regular invitation list to seminars or simply to discus or appraise new developments. Without this acknowledgement of parties who might have a view on some aspect of policy, policy cannot be said to be fully formed or tested.
We would also advocate direct dialogue with user groups such as ManKind and others groups who advise men’s and fathers at street level. This would assist in preventing moves being adopted that would later prove unworkable.
Question 25. What do you think of the suggestions for membership of the Council?
Answer. The specific inclusion of extending invitations to organisations representing fathers and mothers, probably makes this the most creative part of the whole paper.
However, the remaining proposed membership list is a conservative selection and one that would be most appropriate if conditions were static and uncontroversial. Unfortunately, the family court system is under attack from several quarters. In an environment of upheaval we feel the list of possible candidates may not be robust enough to meet the challenges or the new circumstances they are likely to face. Of the suggested parties few areattuned to the new situation. An almost necessary qualification would be for members to have gone through the divorce process.
With the exception of 3 or 4 suggestions, e.g. parents groups, children’s groups and psychiatrists, every other candidature listed on page 25 ad 26 is dependent on the public or court user (quite why the Consumer Association should be included is beyond our understanding).
Courts and the whole legal panoply are created not for the benefit of judges or solicitors but to enforce laws and to respond to the needs of the citizen and thereby benefit his condition. We are in danger of loosing sight of this fundamental.
The proposed list appears to have a bias that would make the council practitioner friendly. It should meet the demand of the user, for whose benefit it is intended.
The mood music has changed. Users will no longer tolerate being told what is best for them, especially from the system dictating to them is crippled at so many levels that it can hardly function.
We are disappointed to read that examples of key research organisations should appear to include Sure Start and Connexions, This is surely not what is meant and we would ask for clarification on this matter.
We would have thought that eminent researchers such as Prof. Halsey, Prof. Norman Dennis, Dr. Malcolm George, Dr. Patricia Morgan, or from the US, Prof. Stephen Baskerville, Dr. Warren Farrell, Robert Sampson, David Popenoe or former Presidential advisor George Gilder, would have been included in any list.
Question 26. Do you agree with the proposed maximum size of the Councils?
Answer. On the proposed basis of the list shown on pages 25 – 26 we would agree that the numbers would make any council too unwieldy. We would oppose a council of 25 members and suggest one of no more than 15 would be far more productive.
This would mean that many on the proposed list would have to be relegated to specialist work on subcommittees. This we see as entirely appropriate given that any council must retain overall control of its overall direction.
To avoid the mistakes of the past, we suggest that the main council should have a balance between experts and users. This would allow for one party to propose and the other to dispose. Users could suggest what they would like to see changed and the experts could either say why it could not be done or suggest alternatives. Similarly, experts could ask users for their views on proposals and be told why it might not work and what modifications would be needed to make it viable.
Question 27. Do you agree that the members of the Council should represent their constituent body?
Answer. Yes. To do otherwise would prove fatal.
Question 28. Do you agree that each organisation should select its own representative?
Answer. Yes. However, we would expect the council to reserve the right to appoint a person, for a very limited period only, who may have no such standing or organisation to report to, if there is a specialist area that needs addressing. This is also touched on at Question 32.
Question 29. How would this work where there are a number of representative bodies e.g. Law Society, Solicitors’ Family Law Association and Association of Lawyers for Children?
Answer. We can only comment from our own experience in regards this dilemma. When faced with a restricted number of places at meetings we and other groups have formed an umbrella group so that as many strands can be embraced.
We would take the view that the Law Society, to whom the other two are arguably subservient, should be the rightful candidate. If this should prove too unpopular with the other groups, then our example cited above might be used to ease the situation.
Question 30. Do you agree that the Council should have a broadly equal representation of men and women and involve representatives from ethnic communities?
Answer. Most definitely. ManKind has come across far too many committees where the number of women have far outnumbered men. In an age of equality this is not equality but preference.
Preference, masquerading as equality, allows the EOC (of all people) to have an 80% female staff. This eclectic view of equality is carried over into numerous other government departments, Quangos and businesses, e.g. Building Societies, Banks. Unless equality in numbers is rigorously maintained and men willing to put forward men’s views are included, a situation will develop where input from men will be shut out entirely.
Our work with ethnic minorities and various religious groups, e.g. Sikhs and Muslims, would indicate there is less need for ethnic minorities per se to be represented, as men who are willing put forward the views of men and fathers. The present family law regime “punishes” them as equally as any white father.
Question 31. If yes, how do you think this could best be achieved?
Answer. ‘Diversity’ is currently a fashionable buzzword. But do we want laws premised on fashion ? The aim, surely, is not window dressing or ‘tokenism’ but a regime of justice of which we can be proud.
We cannot answer for other interested parties but for men’s and father’s groups we have, on other occasions, formed umbrella groups that have worked satrifactory for other national enterprises we have undertaken.
We would be happy to replicate this and to represent the various men’s and fathers groups on the proposed council.
Question 32. Do you think the membership should be extended to include those who do not work directly within the justice system? If so, how might these members’ best be selected?
Answer. Yes, and we draw your attention to our sentiments expressed in answer at Question 28 above.
Their selection should be, bearing in mind the regrettable appointment of Messrs Glaser and Sturges for the LCD report Making Contact Work, by consensus of the council. This would avoid the pitfalls of selecting anyone ‘with an agenda’ and negate any “insider dealing” by use of patronage. The other option, that of tendering could lead to awards being made to those most willing to deliberately undercut costs or principles to secure the presentation of their views, e.g. Scottish Executive’s selection in 2001 of the lowest bid made by a DV researcher known to have specific views.
Our concern is that the existing formulae for selection are pre-disposed to creating committees biased toward legal considerations.
We should also insert at this point our concern that longitudinal studies are ignored in preference to the much less expensive ‘attitudinal’ studies. These are much easier and quicker to mount but the sample size is often biased or comprised of only a few hundred – or in some cases of only 40 or 50 respondents. Two examples of the latter that come to mind are some of Dr. Lorraine Radford’s work and that of Prof. Betsy Stanko. While attention is lavished on these slim volumes much more thorough and comprehensive surveys are never mentioned, particularly by ministers, e.g. HOS 191.
Question 33. There are concerns in the existing system that committees are too legally biased. Would that remain a concern for this Council?
Answer. We share the concerns regarding any committee becoming overly focussed on legal and professional procedures rather than the issues. We therefore broadly welcome this recognition.
We believe one possible way to counter any unintended bias would be to split the council into 3 or 4 key components. Our suggestion would be for one element to represent law enforcement, e.g. judges and or the police. A second could be user groups or pressure groups. A third might be support of ancillary professionals, e.g. CAFCASS, various charities, social workers etc. A fourth – but this might overload the balance in favour of the legal elements – would be for solicitors and barristers. Alternatively, a fourth element could be made up of representatives from the various Whitehall depts. In this way the four elements of 3 or 4 members would create a manageable council of around 15 members.
In our model of a committee structure there would be ‘progression’, ie it would be composed of 3 processes – propose, oppose, dispose. There would be times when one element would propose and times when another element would proposes. The key to the progression is that any proposition is followed by opposition (debate) and concluded by disposal.
Question 34. Do you agree with the proposals for core membership with seconded members for specific items.
Answer. Yes, and we draw your attention to our sentiments expressed in our answer to Question 26 and 29 above.
We see this method as the only way ahead. We foresee the council, of say 15, meeting as one body for most occasions but where needed, combing with a relevant sub-committee, of perhaps 8 members, to make a delegate total of 23.
Question 35. Who should represent the users of the system?
Answer. Naturally, we have a vested interest in saying that ManKind should be one of the representatives for user groups.
Enquiries of Whitehall departments might be helpful. Most of them already have list of organisations that might be considered as possible delegates.
Question 36. How best should voluntary sector groups be represented?
Answer. The National Council for the voluntary sector is the ‘NCVO’ and is one obvious avenue worth exploring, Another, and for the same reason as mentioned above in answer to Q.35, would be Whitehall departments.
We would suggest a division of tasks approach. For instance, we know DV and custody will be an issue sooner or later and therefore the council will need representatives conversant in those subjects.
It is essential, in our view, to have the main parties or protagonists in custody matters. There will be a need for fathers and mother user groups to be represented. There will also be the need to consider the child’s view.
When DV is being discussed the full panoramic view is vital. This would include those that deal with the victims, both male and female, and those that deal with the perpetrators, again both male and female. There would be a need to hear from those that address the needs of the victims as well as those working with perpetrators to find its causation.
An element that must not be overlooked is false allegations, commonly found in cases of DV and sexual offences. This is perhaps one area of the law that is not discussed enough and where few searchlights probe. Too often it is assumed that someone appearing before a jury is confirmation enough that the accused actually committed the crime, if indeed a crime took place, e.g. the former Tory minister Neil Hamilton falsely accused of rape.
Question 37. Who do you think should chair the new Council?
Answer. We have no view about who should chair the council. However, we do have views on who should not.
Firstly, the President of the Family Division should not be chairman, nor should she sit on the council. This, we believe, would undermine confidence in the council’s perceived impartiality and independence.
There is an argument which holds that any person exercising daily direction in a court should not set the ground rules in committee for next year’s cases.
What we would not want, after our CAFCASS experience, to see a civil servant as chairman, nor anyone from the NHS, nor anyone one accomplished in managing large committee meetings. If council membership is restricted to around 15 it will mean the business can be conduct more efficiently and so the chairman chosen should be one with an ability to exploit and compliment that advantage.
We would prefer to see someone able to cut through inconsequential chatter and someone who can get through an agenda and force ‘action’ commitments to be made and deadlines met.
Question 38. Do you agree that there should be specialist sub-committees?
Answer. Yes .
Question 39. What subjects do you think it would be useful for sub-committees to address?
Answer. We would prefer to see an ‘open’ remit. However, the implication of the Sprawson Report into computer failings, which have corrupted the legal system (particularly the Children Act 1989) needs addressing as a matter of urgency. Other subjects suitable for sub-committee discussions are those proposed in our answers to Q.12, Q.13 and Q. 14.
Question 40. Do you agree that membership and the terms of reference of the committees should be flexible depending on the issue to be tackled and that they should be reviewed regularly to ensure that meetings are still needed?
Question 41. What mechanism should be used for appointments to these sub-committees?
Answer. One option would be to staff the sub-committees with those considered essential for the council but for whom no place could be found because of retricsted numbers. This would allow them to then be admitted onto the council on a rotational basis and for the council to have a sense of continuity. It would also have the advantage of enabling sub-committees and the council to more easily meet in joint session.
Another option would be to have the nessary 3 or 4 elements seen at council level reflect at sub-committee level.
A final option would be to have specialist in one field comprise the sub-committee, but that they should represent not only the pro and anti lobby but all views, e.g. DV.
Question 42. Which, if any, of these committee structures do you prefer or do you have an alternative proposal?
Answer. The Consultation Paper starting at “Part 2 – Problems with Current Arrangements” (page 16), indicates a system that does not work.
Pages 17, 18 and 19 then detail more problems with the present regime and why change should be contemplated. Indeed, page 10 – 15 describe the present committee structure and it is clear, long before page 16, why they are failing.
In the light of this it would be folly, verging on the reckless, to replicate the old structure simply for ease of implementation or cost savings when we are discussing children’s futures.
However, if costs are a significant or overriding factor in deciding what the new regime should be, then the savings gained by the adoption of shared parenting would more then offset any increase in committee costs.
To perpetuate the old regime would be to promote old style working methods and re-attract old style (and failed) members. This would defeat the purpose of the Consultation Paper, which has to be applauded for having the courage to be so very frank and honest in reporting the shortcomings of the present system.
We thereforereject the option outlined at para 63 (page 29).
We would prefer a variation of the suggestions contained at paras 64 to 67, which hint at a regional or court circuits based approach. Our reasoning is that it is clear that the creation of CAFCASS and with various reviews now underway within the LCD that parliament is intent on seeing real improvements.
To that end the National Audit Offices (NAO) is charged with officially monitoring CAFCASS’s performance with regards awards and ‘outcomes’ well into the foreseeable future.
Reports from the NAO will give analytical researchers access to social statistics never before widely available. The transparency of the judicial system – a long held and highly prized ambition – would thus be realised.
It would be logical to base future arrangements on the CAFCASS model because this would allow the NAO to make in-depth reports concerning both the commitment and competence of regional CAFCASS offices, officers, and of the court circuits within which they operated. This can only lead to higher court and legal standards.
Other benefits would be that it would bring rigour and uniformity across the country. The courts, the users, and local committee would become pro-active with NAO feedback and they could begin to focus on child and human rights outcomes.
While we are opposed to over-centralisation we feel any wayward or under-performing regional committee would therefore be able to quickly and precisely measure, by how much, it had under-achieved, where, and why.
Finally, we wonder how much consideration has been given to the creation of Regional Panels (ie local empowerment) who would then be charged with setting up the various local or country administrations. This would avoid “top-down” dictat or directing of affairs.
Question 43. Would the title Local Family Justice Committee to be an appropriate one? If not, what other titles would you propose?
Answer. ManKind is a great advocate of Plain English. We therefore find it confusing to have divorce and custody courts titled “family” courts when the one thing they do not create are families.
On a practical and public level, we are not surprised that ‘care centres’ have not been a success. In the public’s mind the name is likely to be confused with ‘play groups’ or nursery schools (or contact centres). Little wonders that they have become backwaters unable to attract the necessary resources and representatives.
With regards ‘Justice Committee’, the institution is a legal one but the instrument is the court. The aim may be justice but as this is a subjective matter and, we contend, rarely achieved, we would suggest dropping Justice from any title.
Instead we would suggest something based on what the court or the committee transacts. For instance, The Local Divorce Court Committee. Or, if that is too restrictive, The Local Divorce & Child Custody Court Users Committee.
Our other suggestions would include; Local Family Court Review Committee; Local Family Court Review Panel; Local Family Court Business Cttee; Local Family Court Conduct Panel.
A title such as the Local Family Courts Complaints Panel would underline that the system is for the benefit of the user, ie the customer, rather than the legal or care professionals. Any member of the public looking up such a title in a telephone directory would immediately know the broad remit of the committee’s work.
Question 44. Do you agree with the suggested subject matter for the local committees?
Question 45. Is it realistic to expect committees to consider family-wide issues rather than the current children focus?
Answer. If committee members are not competent to consider family-wide issues then they are not competent to have delegate status.
If any delegate is incompetent enough not to be able to project current child focus issues onto the family and connect the family with society, then why are they even there ?
If this thinking permeated the old regime of committee we are not surprised they were not hugely successful.
What good is it if your focus on the child but destroy his family in the process ? Frankly, we find this line of thinking not only totally alien to family life but frighteningly pathological.
Membership of the council and of all sub-committee must embrace only the competent. Those able to look beyond their own narrow specialisms and capable of foreseeing the likely impact of their discussions. Obviously, this is something that has not happened before. It is novel and therefore explains much.
Question 46. Of the suggestions for a structure for local committees, which option do you prefer or do you have alternative proposals?
Answer. At various points in our answers above we have commented on this indirectly.
Question 47. Is it feasible to hold meetings four times each year?
Answer. From the Consultations Papers it is clear from the very early pages thatattendance at committees is a problem. For ‘busy’ people, meetings scheduled once every 3 or 4 months are perhaps easily forgettable or fall easy prey to more pressing appointments not envisaged 3 months previously.
Arguably, the distance in time makes the next meeting disjointed from the last. Finding time to step out from their normal work or simply overlooking the appointment is therefore almost inevitable.
Monthly meetings for regional committees are therefore an option worth exploring. Such meetings can be kept short and tackle the normal or usual agenda of work. Short meetings of only a few hours would mean that any other issue that may arise and which require a separate agenda listing could be added and addressed without making it a protracted meeting or delaying the matter until to next meting.
Question 48. Do you agree with the proposed membership of the local committees?
Answer. No. The membership of any local committee must be comprised of ‘users’ above any other group.
That part of the list appearing on page 32 we would recommend as being essential constituents. Those parties listed on the preceding page (p 31) are again biased towards paid representatives who have specific legal functions. Any justice system should work for the benefit of the customer (the public) and so those groups on p31 must take a secondary place in any selection process.
It is the public who should benefit from all these arrangements and therefore any committee must represent public rather then sectional or professional interests.
Question 49. Do you have any comments about the proposed representative role of members?
Answer. We totally agree with the sentiments expressed at para 71. We welcome local participation and selection and draw your attention to our comments at Q.42 above.
Question 50. Do you agree that local committees should continue to be chaired by the designated family judge?
Answer. We have no fixed or clear-cut views on this matter. By tradition and efficacy it might be prudent to continue to include judges.
Our view is that if change is sought by the LCD, and we believe it is long overdue, then are judges the right people to be in the Chair when issues arise that may censure their conduct or question their long held views on certain matters ?
Perhaps to overcome this the chairmanship ought to be rotated, but not voted upon, annually and the role of the chairman to be limited to one who holds the ring and facilitates opposing views to be expressed rather than one who has the power to dispose of uncomfortable topics ?
Question 51. If not, who do you suggest and why?
Answer. See our answer at Q.50, above. We do not want to create a new system that looks after the legal profession’s’ interests at the expense of the publics.
E N D
 MCC (Modernising the Civil Courts). LCD Report “Modernising the Civil and Family Courts”.
 Thorpe LJ, ignored the key phrase “Whosoever shall ….. ” and ruled the purpose of the Violence Against the Person Act 1861, was to protect only women.
 The Sprawson Report – Sprawson is head of the Child Benefit Policy section of the Department for Work and Pensions (“the Department”). His role is “to manage the development and maintenance of policy on Child Benefit and Guardian’s Allowance, and to give advice to ministers on those matters”. He has held that position since September 1999. See Appendix B.
 CSA statistics, 2001.
 Court of Appeal rejected a ‘house husband’s’ attempt to win custody of his two children. The father had given up his job and raised the children, who were now aged 6. His wife had a successful career, earning £300,000 pa, said she planned to give up her career and move hundreds of miles away with the children. – Telegraph, 19/04/2002 . (Thorpe, LJ).
Footnotes – part A
 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.
Robert Whiston FRSA Nov 24th 2012
The following papers were first begun in 1996 as a 4-part briefing paper for Families Need Fathers (FNF) in their projected talks with Baroness Hollis. At the time this was something of a breakthrough – fathers groups had hitherto been sidelined and dismissed as a minor irritant.
It is today difficult to comprehend that in those early days, the mid 1990s, father’s and men’s groups were forever being knocked back by opponents who were apparently better equipped and better armed with research data.
The Baroness Hollis ‘episode’ therefore marked something of a sea change in that it signaled the beginning of serious attempts to collect and collate data on behalf of father’s and men’s groups. At first there seemed to be very little data available and even less which supported fathers claims that children thrived better with fatherly participation after divorce. This, one has to recall, was the era when it was fervently believed that children of unwed mothers and divorce mothers didn’t actually need ‘a father’, and that a father’s role was utterly superfluous to a child’s development.
However, having discovered the trick of not seeking to find information or data in a head-on search but to attack the problem laterally, e.g. using the footnotes found in dismissive papers to back track and to reverse engineer statistics from the ONS, irrefutable data soon built up. Those technique, with some variations, enabled over 10 separate but similar papers, on fatherlessness, to be prepared in the years between 1997 and 2000 (those papers are now displayed below on this blog site).
The first external use of some of the key data can be found in “The Emperor’s New Clothes: Divorce Process & Consequence” (pub’d 1996) by The Cheltenham Group (see ISBN 1 900080 04 4).
By July 1998 the key statistics had appeared in “Family Matters” (pages 7 – 10) published by a Joint Parliamentary Group under the chairmanship of Lord Ashbourne (ISBN: 0-9533429-0-5).
Latter, in 2000, “The Cost of Family Breakdown”, published by the same Joint Parliamentary Group (chaired by Gerald Howarth MP), utilised the paradigm I had devised for the ‘cost of single parenthood to the Exchequer’. I was invited to work closely with the principal researcher, David Lindsay, to set up the cost spine and implications – seen in the opening pages -enabling others to develop the consequences (ISBN: 0-9533429-1-3).
A selection of the data and the arguments can also be found in Melanie Phillips’ 1999 book, “The Sex-Change Society: Feminised Britain and the Neutered Male”, (pub’d Social Market Foundation, ISBN: 1-874097-64-X).
The quality and veracity of the work undertaken in 1997 – 2000, can now be soberly judged given the passage of time. To those new to the topic and issues, it is hoped that in publishing what amounted to semi-predictions in 1997 can now be taken as evidence of a long term concerted effort to correct key factors that are still present and still going wrong inside society.
- Robert Whiston FRSA (Nov 2012)
Fatherlessness – Recent Trends in Lone Parent Households
“Lone parent’ is the generic term given to women in Britain of any age living alone but with dependent children. Lone parenthood arises from, a). marriage failure leading to divorce, b). death of the husband leading to widowhood or c). giving birth out-of-wedlock (including cohabitation). In the USA these categories have the term SMH, or single mother househiolds
The story of fatherlessness is therefore the story of all these various forms of lone parenting.
To gauge the impact and nature on children of being born and or raised without a father one first has to determine the number of children involved. Comparisons can be made with ‘outcomes’ from traditional family units. However, this seemingly simple step is one that currently the statistical authorities in this country find difficult to perform with any degree of accuracy. As we shall see later, the totals in each subset where children are born or raised without a father are contradicted by evidence from other equally dependable statistical sources.
Without the ability to quantify the subsets no one is well placed to measure the overall problem. Yet despite this there is a core of basic facts – if one is prepared to dig deep enough – and upon which a model can be built and thereby we are able to construct a reasonable picture.
The result of obfuscation by political leaders and of a lone parents industry, which is worth millions of pounds, is that we have social policies that a). do not work well; b). that destroy children’s futures and c). that owe more to protecting egos, reputations and idealism than efficacy, humanity and probity.
Marriage has, until recently, been the historic prerequisite of child bearing for all civilisations and in all societies. Marriage ceremonies formalise the parent’s commitment to the institution of marriage and publicly signified both parents’ acceptance of the many responsibilities involved in raising children.
The notion of uninhibited sexual intercourse as a leisure option, a hedonistic life choice, is relatively new. Many argue this was made possible by the advent of the contraceptive pill but in the mind of the inventor his creation was to increase fertility among women that had menstruation regulation difficulties and who could not easily conceive. Stemming fertility was not in his mind.
It was in the latter half of the 20th century that changes in social patterns first began to emerge following the end of World War II. The first ‘disruption’ was an increase in divorce caused by war. The disruption first manifest itself in the number of divorce petitions filed and granted (Fig 1 and Fig 2). Paper 8 discusses this topic in more detail.
Between 1946 and 1948 ‘Quickie’ divorces were introduced in an effort to clear the backlog. Later in the 20th century (1971) divorces again became easier, followed in 1977 by a second new form of ‘Quickies’. Consequently, more marriages lasted a shorter time (Fig 4, see also Paper 8).
The post war boom in divorce numbers peaked at 47,000 having jumped from just over 9,000 in 1938. In the years following 1948 numbers fell yearly. The two tables (Fig 1 and 2) illustrate the impact of legislation upon divorce levels in the two eras, eg 1947 and 1997, and consequently upon the number of children (an additional 100,000) made fatherless, i.e. ‘orphaned’ by the state.
NB. The number of divorces petitions ‘filed’ are usually at a slight variance from those actually ‘granted, Significantly whereas in the 1940s petitions were spread almost equally among the sexes, by the 1990s women comprised 70% of all petitions.
Ironically, between these two dates 1949 to 1961, at precisely the same time divorces were declining, both Church and state were seized with the idea of preparing the foundations for reforming divorce.  A similar reforming move was mooted in 1912, – again when there seemed to be no public demand. That initiative, however, was cut short by World War1.
One can’t help but wonder if the divorce reformers of the 1969 Act confidently anticipated a similar fall off in numbers, as was witnessed in 1949, but were too embarrassed to say anything when it failed to materialise.
The 1969 Divorce Reform Act (enacted 1971) saw the number of divorces rocket to historic highs. Within 12 months (1972) marriage, the other side of the coin, which was meant to be immune and unaffected, began an unremitting decline to historic low levels not seen since the poor harvest years of the 19th century (Fig 3 and Fig 4).
Fig 3 shows first-time marriages peaking in 1970 at 340,000. This subset has fallen every year since. In 1993, at 182,000, it matched the lowest recorded figure since 1889, despite a much larger population.  Total Marriages, not just first time, in 1972, were a peacetime record at 426,000 (Fig 4).
In 1994 there were over 158,000 divorces of which 127,500 were to couples married only once and 30,700 were to re-married couples.  The mean average age for divorce was 37 for men and 35 for women. In 1993 the number of women who re-married totalled 75,900 women (48% of divorces).
These movements, marriage, then divorce, followed by re-marriage, obviously had an influence on children and complicated custody issues. Since the early 1970s fairness in custody has been an issue for fathers who have found themselves increasingly shut out as divorce numbers increased.
Again, comprehensive figures for custody disaggregated into mother and father custody are not easily found. For several years many researchers have been advised by the Lord Chancellors Dept,  that such statistics were no longer being kept.  (Addendum: However, a recent government Green Paper circa 2003/4 has since cited them).
A similar position has been taken by the New Zealand government. For instance, when New Zealand MP, Steve Maharey, asked what were the sexes of parents given custody by the courts from 1985 to 1996, the New Zealand Minister for Courts (Mr. Graham) duly responded a month later citing only the 1985 to 1990 figures (Fig 6). When pressed on the matter the minister conceded that, “No information is collected relating to the gender of parents receiving custody of children specifically in ‘contested cases’ determined by the courts”(italics added). Note how the question about total custody cases was answered by citing only children specifically in the subset of ‘contested’ cases. This attitude also encapsulates the position in England. After 1990, New Zealand simply ceased to gather statistics in this crucial area of family life.
State welfare benefits, first provided in the post-1945 era were re-structured in the 1970’s. This ensured that better than the barest minimum living standard could be expected, firstly by divorced women and then, more latterly, by never-married-mothers.
Historically, divorce had always been rare. In 1937, according to a House of Commons research paper, 10,350 divorces took place (itself a spike due to recent legal changes), and despite the turmoil of WW2, it rose to 15,634 in 1946. 
During the last three decades (1967 to 1997) the stigma, and hence social control, once attached to illegitimate births and motherhood has been laboriously and steadily eroded. During this era it has been fashionable to assert that it is more liberating and empowering for women to give birth outside the traditional family. There is a fashionable belief based on suspect “studies”, that a child can be raised equally successfully without the input from any father figure. This doctrine receives social approval at the highest political and intellectual levels. It then permeates downwards and is now generally acceptable as a social status. More credible studies, however, indicate that the ‘outcomes’ for such children are extremely disappointing. The effects of divorce reform and shifts in social mores has seen a reassessment by the unmarried which could be said to be partially reflected in Fig 7,where the age of bachelors/spinsters and divorced men/women is steadily increasing.
Taken as a group, divorced and never-married mothers are now known generically as lone parents, or one parent families. In the US, they are known as ‘single mother households’ (SMH). In both the US and Britain, and most English speaking western democracies, this social subset have, since the 1970’s, become a political ‘cause’ and around them, perhaps unwittingly, has grown an immense lobby industry worth many millions of pounds.
Today, there are about 13.48m children under the age of 18 in the UK and 11.1m in England and Wales. The number of children under 16 years of age in the UK is 12.7m, and 10.8m for England & Wales only. Some 9,571,000 (9.57m) were of school age (see Fig 8).
This second group (the under 16 year old) is the most frequently used category for statistical purposes and in research studies. They are usually referred to, as “dependent children“.
In 1993 it was officially estimated that one in five (20%) of dependant children (under the age of 16) lived in lone parent families, i.e. widowed, divorced, or unmarried mothers. Thus for England & Wales some 2.1m (2,160,000) children had no father to wish them “Goodnight”. 
In 1994, of the 2.4m dependent children living in One Parent Headed Households, over half were children of “never married” mothers. Whereas twenty years earlier well over 50% would have been from divorced or separated mothers. Statistically and socially this is a turning point.
By 1999, the estimate for the number of children without a father in the household has been revised upwards to 1 in 4, or 25%.
In 1991 the OPCS (the Government’s statistical service) estimated that the total number of children cared for in lone parent households totalled 2.3m (2,100,000 by women and 200,000, or 10%, by men).
For the last 20 years consistently 90% of one parent (i.e. single mother) households have been headed by women, i.e. divorced, unwed, separated, or widowed etc. This ratio of 90:10 disparity is reinforced by CSA payment figures where around 95% of assessments and payments are of and by men.
Such has been the growth of lone parents that in 1993 the OPCS felt compelled to more properly define them as a statistical and social phenomenon (Fig 9).
Survey (LFS) but without ‘adjustments’ to exclude ‘cohabiting couples’.  Consequently, later in Population Trends’ No 72, the LFS figures for the number of lone parents (not shown in this paper) do not agree with other official Gov’t surveys, e.g. the Family Expenditure Survey (FES).
Some difficulty is encountered in ‘category 5’ (cohabiting mothers), and caution should be exercised when examining official government figures (post 1990) because cohabiting couples can be found in statistical compilations for married couples and at other times included in the single mother categories when, for example, dealing with extra martial fertility rates. The latter can occur when conception and birth occur in a cohabiting situation following a divorce (see Paper 3, Appendix C and Paper 5).
The figure for lone parents (see Paper 3, Fig 16) includes a degree of error because some cohabiting couples may claim to be married when they are not, while conversely, some cohabiting women may claim to be single to increase their benefit entitlement. For other reasons some unwed single mothers may claim to be cohabiting – see Finer Report in later Paper (for statistical confusion see Paper 4 Appendix C).
Because they are so few in number all forms of lone fathers, e.g. widowers, have to be grouped as one category to be of any statistical significance. The Family Expenditure Survey (FES), for instance, contained over 1,500 benefit claimant mothers in the survey but only 272 claimant fathers (see Paper 3).
Overall, single parents are a statistical minority in the population, and working single parents an even smaller statistical minority – except for lone fathers. Over 70% lone fathers work – mainly full time. This compares with around 40 % of SMH (single mother households) who work usually part time, i.e. less than 40 hours per week and probably less than 20 hours (OPCS ‘Population Trends’ No. 72).
The number of ‘bereaved’ children, that is, having lost and lacking a father, appears in recent years to be rising by about 100,000 per annum – fuelled by a divorce level of over 150,000 per annum (see Fig 10 below) and an illegitimacy rate rising from 37% to an expected 54%. Divorce alone could account for the whole of this amount, e.g. 1995 – 106.9k, so the combined totals of children from never-married and divorced mothers must be reduced by their parent entering into marriage for the first time, cohabitation or re-marriage (see Fig 4 and Fig 5 above).
In addition to the 100,000+ couples with children who divorced – and who can be estimated to have 1.5 child each giving rise to approximately 150,000 ‘orphans’- there were 86,174 teenage pregnancies in 1996, of which 30,296 lead to abortions. Rough calculations would appear to show that the 150,000 children would be reduced by re-marriages from 25,500 to 120,000 (17,000 x 1.5 children). But as Fig 11 and Fig 12 show, simply adding back net conceptions in the under-20-year-old category raises the overall figure well in excess of 100,000 per annum increase stated in the official statistics for dependent children. Hence the concern that even the ONS cannot be certain which figure is the most reliable.
Abortions among girls under-16 have risen 14% and by 12% for girls’ aged between 16 and 19. Teenage pregnancies in Britain are already double EC levels and are 7 times higher than in Holland, often quoted and compared because of it’s equally ‘liberal’ regime. However, Holland does not give any ‘priority‘ in its housing allocation to pregnant teenage mothers.
The British Gov’t set itself the target of reducing by 50% the under16 year old pregnancy rate from 9.5 per 1000 to 4.8 by 2000. It also recognised that teenage pregnancy posed an increased risk of infant mortality and morbidity. 
The following table (Fig 11 below) shows the number of conception in the very youngest age groups. The trend for child birth among girls between first menstruation to under 16, is slowly rising, whereas the trend for live births to young women aged under 20 is falling quite significantly. In the age groups 30 – 34, 35 – 39 and those aged over 40, the number of live births is rising. This is thought to be a function of women’s work/careers paths, wage rates, and taxation policies, resulting in ‘deferred’ family creation.
Pregnancies terminated by abortion have risen only slowly from 18 per 1000 in 1971 to 25 in 1991. Pregnancies leading to maternity have fallen sharply from 65 per 1000 in 1971 to 43 per 1000 in 1976 and have held static for many years. Total conceptions also fell sharply between 1971 to 1976, from over 80 per 1000 to 60 per 1000, respectively, but rose after 1983 from 56 to about 69 per 1000 in 1990. But girls aged under 16 are most likely to have abortions (around 50%) than those aged under 20 (Fig 11).
In 1981 births to married teenagers accounted for 53% of all teenage births. In 1991 births to married teenagers accounted for only 17%. Fig 12 shows the total decline in birth to women aged under 20 especially among married women (down from 61,000 to 9,000).
Fig 13 shows the declining trend between 1970 and 1983 in the number of births occurring within 8 months of marriage. NB. They are estimates using the normal term of nine months as the basis for the calculation.
Some, if not all, children of divorce or illegitimacy will experience their mother marrying, re-marrying or cohabiting with a partner. This is variously referred to as ‘re-partnering’ or ‘reconstituted families’. This process may happen once or serially. Of itself this is known to have a detrimental effect on the emotional and psychological constituents of all children. Serially, the impact must be assumed to be greater.
In 1991 it was estimated by the OPCS  that 1.1m dependant children lived in re-constituted families. When the figures for lone parent households and re-constituted families are combined a total of 3.5m children (2.4m + 1.1m), under the age of 16 emerges. This means that nearly one third (32.4%) of all children under the age of 16 do not live with their biological father.  Ten years from now the numbers will be even higher. The corollary is that 1 in 3 (33%) fathers and grandfathers, i.e. several million men, do not enjoy guaranteed or frequent contact with their children and yearly that figure will rise.
“Gate-keeping” is the term applied when ex-wives interfere, deny and or obstruct ‘contact’ (or visitation
US) by the former husband. Separate and independent surveys find that after a period of 4 – 5 years this phenomenon applies to 40% – 50% of divorce cases with contact falling to 10% – 20% or being lost altogether as the time since divorce increases.  Therefore, almost 15%, or 1.62m children  receive no direct input whatsoever from their father into their general health and welfare. This corresponds with many behavioural surveys that put the figure for child/ paternal deprivation in the 30 – 40% category. 
This ‘father deficit’ manifests itself in poor educational attainment and mortality. Paternal (fatherly) input, however small, has a demonstrable effect on school attainment and career plans. The ‘socialisation’ of children is the unique role a father plays and their absence leads to anti-social behaviour of all types.
This socialisation role, giving rise to the ability to empathise and to be tolerant,  has been harshly neglected to the point of suppression for the last 30 years.
There are approximately 22.4m households of all descriptions in the UK. Whereas somewhere in the region of 50% would, in the 1950’s, have been a ‘conventional’ household, today the figure is far less.
In 1994 married and cohabiting couples with children made up less than 1 in 4 of all family household types (25%). Childless married and cohabiting couples  comprised 33%; single persons (inc. OAP’s) 28%; with 7% classified by the ONS as “others”, and a further 7% were classified as single parents.
ONS surveys found that the two burgeoning sectors were, 1). lone parents and 2). cohabiting couples. Lone parents, i.e. women with dependent children, accounted for 1,568,000 of the 22.4m households, i.e. 7% (see ONS Population Trends, Table 2b). Of the 33% childless married and cohabiting, only a third, i.e. 11%, are thought to be cohabiting couples with children. 
The figures for these two categories are very illustrative due to the floating nature of the attachments formed by the women. Non-permanence means an endless series of changes as they slip from one category into another. In turn this has led directly to statistical complications as the 1.56m for lone parents conflicts with a much larger numbers who claim lone parent benefits and allowances, e.g. One Parent Benefit. As we shall see, in a later in Paper 3 (Fig 16 and Fig 17), ONS has had to ‘average’ the number of lone parents from the numbers claiming benefits exclusive to lone parent within the welfare state
Since 1971, when the Divorce Reform Act 1969 became operational, over 3.5m (3,524,614) couples have, in cumulative terms, been divorced. Therefore, over 7.0m (7,049,228) individuals in the adult population of 40,624,000 (51,820,000 less 11,196,000 under 18 years old) have experienced divorce.
The 7m figure represents 17.5% of the adult population (7m/40m x 100%) and 33% of the 22.4m households; a proportion that does not reflect the high number of re-marriages that fail.
At a time when only 58% of households (irrespective of offspring) contain 2 adults in a relationship, this means the figure could very well be an underestimate of the real situation. Thus every family in every street in every town can be said to have been ‘touched’ by divorce.
The situation is exacerbated by the very much higher divorce rates for those divorcees who re-marry. This is also true of cohabiting couples where the average time before separation is less than 2 years. As was mentioned previously, every time this happens, the children will take further psychological knocks. Research indicates that in turn, when these children become adults, they are more likely to cohabit and be quicker to opt for divorce – creating another cycle of complications. Family breakdown fuels demand for housing over and above what would be normally expected from a more stable population.
Today the average number of children per couple has fallen from 2.4 in the 1970′s to 1.8. Therefore, 3.5m (3,489,367)  children have felt the impact of divorce in their social and their academic life will suffer. Those same 3.5m children have not only been jolted out of their familiar surroundings and thrown into a dependency on the state but later become a social cost to the judiciary and it is the Treasury which picks up the bill for a liberal divorce policy.
Children of single parents are more prone to pathologies both mental and physical and are far more likely to spend a term in jail. These disadvantages are further outlined in Paper 2.
When awarding custody the Court Welfare Officers Association,  have no any idea of the downstream consequences, i.e. ‘outcomes. Nor do judges who make the awards, nor the Lord Chancellor’s Dept who implement the policies.
It is truly a case of the blind leading the blind. If they were made aware of the catastrophic ‘outcomes’ 10 and 15 years downstream caused by their ignorance, policy changes would, one hopes, be immediate.
E N D
 1956 – Royal Commission on Marriage and Divorce, known as the Morton Report, HMSO (see also 1912 Commission). Paper 8, Appendix C.
 OPCS Population Trends No. 80
 OPCS Population Trends No. 83
 Addendum: Now re-titled the DCA (Dept of Constitutional Affairs). For aggregation problems see Paper 4, Appendix C.
 See SPIG website stating that ‘Judicial Statistics have not been collected about custody for 10 years’.
 See Paper 8, Fig 3. See also reference above to discrepancies between ONS and Judicial Statistics.
 10.8m children under 16 x 20% (1 in 5) = 2,160,000
 See “best estimate” problems associated with calculating number of single parents/mothers in a separate paper. Cohabiting couples are usually combined with married couples (by the ONS) but some cohabiting mothers may have been counted into other lone mother subsets.
 OPCS Population Trends No. 74 (Spring 1994), Teenage conceptions 1971-91. See also “Health of the Nation” White Paper.
 Population Trends No. 74 (Spring, 1994) Conceptions for women under 20 years of age
 Now renamed the Office of National Statistics or ONS
 This is a comparable level with the US. See also ONS Population Trends, 1995 estimate and footnote 3 above
 Seltzer J Relationships between fathers and children who live apart, Journal of Marriage and Family US 1991. The British Gov’t concedes that in relation to Non-Resident Father (NRF) “40% of fathers lose all contact with their children within 2 years of separating” (Para 14, 15) – Children First: a new approach to child support, HMSO, see also “The CSA – a burden on the state”UKMM, Nov 1998
 Calc. 10.8 m children under 16 years old x 15%
 36% of US children do not live with their biological father (Paper 7, Appendix H) , and over 40% of father do not see their children after 5 –10 years (Paper 8, Appendix G)
 Non-Resident Fathers in Britain, Bradshaw & Skinner The University of York March 1997
 “Father and Child Reunion”,Warren Farrell, 2001
 See caution re: Aggregation, Paper 4, Appendix C. Statistical inaccuracy caused by the definition of ‘married’ etc.
 The Fragmenting Family – does it matter ?”, Patricia Morgan, IEA. p73 . and ‘Population Trends’ Spring 2004, page 65.
 3.52m = cumulative divorces x 1.8 average children per family x 55% of divorces involving children.
 Addendum. Renamed CAFCASS in 2000.