Parental Alienation - The Need for Consistency

The Telegraph today ran an article on parental alienation headlined "We must stop turning children against divorced fathers".

It's an area of interest for me, having worked on numerous cases where parental alienation was a factor, and having seen slow change in the courts on how parental alienation is considered and approached.

People still say the court does not recognise parental alienation. This is untrue. That said, it is an area where knowledge and approach are respectively lacking and inconsistent, a point highlighted and indeed raised by senior members of the judiciary.

2014 saw three judgments, which I consider landmark judgments, which consider the level of harm done to children through alienation, and discussions within the psychological community on the harm done to the alienated parent (something rarely considered).

H (Children) [2014] EWCA Civ 733
The Honourable Lady Justice Parker made comments that professionals involved in parental alienation proceedings need a far greater understanding of parental alienation and the harm caused. The social worker involved had held a position that there should be no contact, leaving the child subject to continued alienation and cognitive manipulation by the alienating parent. Parker disagreed:

"74. I regard parental manipulation of children, of which I distressingly see an enormous amount, as exceptionally harmful. It distorts the relationship of the child not only with the parent but with the outside world. Children who are suborned into flouting court orders are given extremely damaging messages about the extent to which authority can be disregarded and given the impression that compliance with adult expectations is optional. Bearing in mind the documented history of this mother's inability to control these children, their relationship with one another and wholly inappropriate empowerment, it strikes me as highly damaging in this case. I am disappointed that the professionals in this case are unable truly to understand this message. The recent decision of the Court of Appeal, Re M (Children) [2013] EWCA Civ 1147 requires to be read by all practitioners in this field. Lady Justice Macur gave firm and clear guidance about the importance of contact. Parents who obstruct a relationship with the other parent are inflicting untold damage on their children and it is, in my view, about time that professionals truly understood this."

Parents who alienate their children cause their children harm. It's a form of emotional and psychological abuse, and arguably, domestic violence.

Parker also dealt with the issue of children's wishes and feelings, explaining in legal terms why there is a stark difference between ascertainable and expressed wishes, when the child has been alienated:

"72. The social worker, JW, who is warm, caring and committed, urges me to leave the children living with the mother because that is what they say they want. Until I enforced contact she was also saying that there should be no contact, because that is what the boys say they want. The proof of that pudding has been very much in the eating, on present showing. I have more than once stressed in this case, as in others, that the word used in the Children Act about wishes and feelings is "ascertainable" and not "expressed". "Ascertainable" often means that the Court has to look at actions rather than words. The ascertainable wishes and feelings of these boys have been demonstrated by the evidence that they are more than happy to be with their father. I suspect they may feel some relief being out of the maelstrom. Their grandmother is calm and robust."

Parker nailed it, handing down a useful authority to help practitioners in this area.

T (Children) [2014] EWHC 2164 (Fam)
This was a case which had, as many do when there is a degree of complexity, dragged on unacceptably with little in the way of resolution due to a process which is not geared towards speed.

Resolution came when the case was transferred to His Honour Judge Hamilton, who had 'got hold of the case'. Guidance included that there was a need for early investigation in such cases, that there should be a Guardian-ad-Litem appointed (separate representation for the child which can aid in investigation), but again some criticism of the social worker for having asked the child leading questions. A lack of expertise among investigating social workers was again an issue.

W (A Child) [2014] EWCA Civ 772
This case saw the court taking a more resolute approach, where the mother had made sexual abuse allegations (quite common) and matters had to proceed to a finding of fact (the judge determining whether the alleged abuse had or had not happened):

"[30] At the outset of proceedings I warned both parents of the serious consequences of pursuing this fact finding exercise. Were the allegations now make [sic] of sexual abuse true, then the court would be finding [the child] had been abused twice over, both by the grandfather and, later, by father. It would almost certainly mean, given [the child´s] distress, the need for a section 37 report, and probably an interim supervision order, and very careful evaluation of the need to protect, of a risk assessment, and the need to manage, with care, a deeply damaged little girl.

[31] Were the allegations untrue, then mother would be guilty of feeding her with untruthful stories, of an obsessive nature, about sexual abuse. Again, I would almost certainly be directing a section 37 report and making an interim care order, as [the child] would then need speedy removal from an abusive home."

His Honour Judge Cardinal, in paragraph 31 of his earlier judgment, raises the prospect of a finding that the mother had caused the child significant harm if her serious allegations were found to be false.

There are arguments that the family court does not sufficiently consider punishing perjury when parents lie in court. More importantly, the court routinely does not sufficiently consider the harm to the child's identity, relationships and wellbeing when false allegations are malicious and would have material consequences for the child had they been believed.

It can be tempting for a parent who faces false allegations to want punishment for the alienating parent. There is no doubt in my mind that a lack of consequence for perjury in the family court has given a green light to parties to lie. That said, first, the harm to the child should be the court's paramount consideration, and too often is not. Things have improved in recent years, but the judgments in 2014 highlight that these improvements are not universal.

In this case, both the local authority, the father, and the guardian-ad-litem accepted the court's judgment. The mother, upon her allegations being found to be false, and the child removed from her care, did not. Sadly, the child was so alienated that an immediate transfer of residence was not possible. The appeal court upheld the lower court's decision:

"21. I ask the question rhetorically: given the court´s findings, how could the judge leave the child with the mother? No level of sufficient support and necessary protection was described by anyone. To leave the child without protection would have been unconscionable. One has only to consider physical abuse to a child that gives rise to a similar index of harm to understand that such a position was untenable. The submission made on behalf of the mother that her care of the child had in all (other) respects been good or even better than good simply misses the point. More than that level of care was needed to protect this child from her own mother."

22. The distress that had been engendered in the child, as advised by the children´s guardian, sadly made an immediate move to the father impossible.

Other cases
Lord Justice Ryder identified 5 flaws in the handling of the case K (Children) [2014] EWCA Civ 1195.

1. The nature and extent of the applications that were made by the parties, the orders that could be made in consequence and in particular the welfare options underlying those orders, were not identified with sufficient or any clarity;
2. There was no sufficient welfare analysis of the options that were available;
3. The proportionality of the removal of A on the grounds of 'safety' from the care of either or both of his parents was not justified;
4. The separation of the boys from each other was neither considered nor justified; and
5. The determination of the court was inappropriately influenced by a discussion between the judge and the boys.

In short, various options should be considered, and while speed is important in helping limit the extent of alienation, there are also risks when this is done at the expense of a detailed investigation, and in the absence of a thorough welfare analysis of the options available to the court. Most of the criticism concerns the specific handling of that particular case, and there is not criticism of interim care as a solution, but its proportionality in the circumstances involved.

It should be noted that Ryder LJ had upheld the decision concerning the use of interim care in the case (above) W (A Child) [2014] EWCA Civ 772 finding alternatives to be 'unconscionable'. Ryder rightly points out that such a resolution must be proportionate.

Further case law concerning parental alienation can be viewed on our Parental Alienation and Intractable Contact Dispute Case Law Menu (click on the link or the image) which includes a brief summary of each judgment, a full version to read onscreen, and PDF versions to download.

We also provide guides to assist the alienated parent, including on the specific subject of Parental Alienation, and upon the role and appointment of the Guardian-ad-Litem.

We also presented at the Families Need Fathers AGM on Parental Alienation and Developments in Law, and a copy of our powerpoint presentation can be accessed below. Please note, if the image appears blurred, increase the resolution to a minimum of 490p via the settings wheel in the bottom right hand corner (the problem is your Youtube setting, not our video).


Powers Available to the Court
It's worth reviewing powers available to the court:

Investigative:

• Appointment of a CAFCASS Officer
• Appointment of a Guardian-ad-Litem to represent the child's bests interests and 'ascertainable' wishes and feelings
• Appointment of an Expert (psychologist), and psychological assessments of the parents and/or child
• Involvement of Social Services
• Supervised contact and reporting

The court should (albeit arguably does not sufficiently) satisfy itself that CAFCASS Officers, Guardians, Social Workers and Experts have sufficient experience to investigate and report upon cases where the child might be alienated and his or her ascertainable wishes and feelings are obscurred through alienation.

Powers/Orders Also Available to the Court

• Parenting Information Programmes (courses to focus parents on appropriate parenting)
• Penal Notices (the potential exists that the Warning Notice on an existing contact or child arrangements order is not on the face of the order, and this should be corrected)
• Punitive (community service, fine or imprisonment for contempt of court in the event of non-compliance with orders)
• Counselling/Therapy (for the parents and/or child)
• Suspension of residence (or 'living arrangements' within the confines of a child arrangements order) as a stark warning to the alienating parent
• Reversal of residence (or 'living arrangements' within the confines of a child arrangements order) to remove the child from abuse
• Temporary Care Order to assist in the transfer of residence where the child has become alienated and an immediate transfer of residence is not possible
• Family Assistance Order - whereby a welfare officer will assist the family for a period of up to 12 months
• Supervision Order - if the child is identified at being risk of harm through emotional/psychological abuse
• Specific Issue Order - in respect of such things as the child attending therapy
• Prohibitive Steps Order - limiting the alienating parents' role in aspects of the child's life where their involvement may be harmful or perpetuate alienation.

The Need for Expertise, Training and High Standards
We believe that:

• Experts should be identified and trained, within the field of social work, within CAFCASS, within psychological service providers and the judiciary, specifically in relation to parental alienation, with best practice in investigation shared.
• A list of these experts should be published (to assist both the court and litigants-in-person).
• The British Psychological Society to identify a list of suitably experienced, qualified and experienced clinical and child psychologists capable of assisting in alienation case.
• The President of the Family Division of the Court should set out clear guidance for the management of cases which involve parental alienation and intractable contact dispute.
• High standards are essential, as a failure in this regard makes alienation more likely to become entrenched and harder to resolve. Counselling and Psychological Practitioners must publish clear service standards, in terms of face-to-face appointments, handling of cancellations, costs and approach to assist both the parents and the court in holding them to account. Practitioners should not subvert or advise against clear directions and the strategy of the court of their own volition and without referring back to the court.

Judicial Opposition to Shared Parenting - Who sets social policy?

Rumours are circulating of retired judges, now incumbent in the House of Lords, raising opposition to the Government's proposed shared parenting legislation. No doubt we shall hear other grumbles of discontent in the coming months.1

The Government is seeking to introduce a presumption of shared parenting in law. Where there are case specific reasons why shared parenting is inappropriate and may expose children to harm, each judge will still be able to decide whether shared parenting is appropriate. So what is the problem?

Laws should reflect societal norm, and be subject to democratic process. Parliament, democratically elected, decides what our laws should be. Once set, one would expect the judiciary to adhere to both the letter and spirit of the law, but on the subject of shared parenting, historically, the judiciary have opposed Parliament's intentions. I raised this matter once with Sir Nicholas Wall, current President of the Family Division of the Courts, who replied that 'the judiciary do not read Hansard.' A fair reply, but one would have thought that once aware of Parliament's intentions, there would be guidance from the President to his judiciary.

So why is a presumption needed in Children Act statute? This is where the discussion gets uncomfortable for the senior members of the judiciary... because the courts are too inconsistent... because outcomes in the courts do not reflect societal norm... because outcomes from the courts likely contribute to mental health, delinquency, low academic attainment and other social and developmental problems for children... because the judiciary believe that they (as experts in law) have a better understanding of child psychology than the experts, and Government. From this, the judiciary have shaped social policy for the past 20 years, in opposition to the intentions of Government. 

An outrageous claim? Let's look at some 'real' evidence, but be mindful that if the senior judiciary accept our evidence, they also accept that their defense of judicial discretion has been at the expense of child welfare... but onto some of the evidence:

What is the norm in society? There has been extensive research done by the Equal Opportunities Commission, with studies done in both 2003 and 2007 on the division of parental care time. These studies found that in intact families, the amount of care time parents devoted to children differed by only 16 minutes a day (between mums and dads). Women work now. Parents share care. That's not a desire, to be shaped by Government policy, but a reality which should be reflected in law.2

What outcomes are commonly granted by the courts when parents separate? Arrangements for children are markedly different. We were surprised when the research came out.

On average, staying contact is only granted in 60% of cases, but it is the variation between the courts which on one level is shocking, but on another, is no surprise at all!3

There are some excellent judges. Modern, with an understanding of current parenting trends... but there are also dinosaurs whose ideas of family life remain in the 1970s. What we get from the courts is an inconsistent outcome. A lottery... and a presumption may help iron out some of that inconsistency by reminding judges of what society is today, and of what is known today about securing child well being.

What difference between two courts...In one... staying contact granted in 73% of cases.. in another just 28%. In one... all parents permitted some form of contact. In another, just two thirds. 

We help people with many court cases, and a common question asked is 'what are my chances'. There are so many variables outside of the facts of the case... and these are the individual opinions of CAFCASS Officers and members of the judiciary. So much depends upon the judge you get, and frankly, who you get is pot luck. 

Child Welfare and Shared Parenting

Is there a link between shared parenting and positive outcomes for children. Yes... and the benefits are seen in their educational, psychological and sociological development. They are 40% less likely to suffer mental health problems. Less likely to experience drug addiction, teenage pregnancy, and delinquency. Their IQ is likely to be several points higher. Wild claims? Not at all... read the research findings here.4

Have there been attempts to introduce shared parenting before? Yes... when the Children Act 1989 was introduced. Parliament's view, over 20 years ago was that if shared parenting was practicable, there was no reason to discourage it. Read the words for yourself...

"It is intended that another difference between residence and custody orders is that the new order should be flexible enough to accommodate a much wider range of situations.

In some cases, the order will provide that the child shall live with both parents, even though they do not share the same household. If such an arrangement is practicable, there is no reason to discourage it.

More commonly, however, the order will provide for the child to live with both parents, but to spend more time with one than the other...It is a more realistic description of the responsibilities involved in arrangements of this sort to make a residence order covering both parents rather than a residence order for one and a contact order for the other."5

Parliament intended that the new act would see shared parenting and shared residence become the common outcome for children affected by parental separation. Parliament’s thinking was ahead of its time, and has been upheld by a wide body of research in subsequent years, and we detail much of that research in our publications.

The more progressive members of the judiciary are well aware of the advantages of shared parenting, and Parliament's intentions. As expressed by Mr Justice Mostyn:

There is very good reason why such orders (shared residence) should be normative for they avoid the psychological baggage of right, power and control that attends a sole residence order, which was the one of the reasons that we were ridden of the notions of custody and care and control by the Act of 1989.6

Again the problem is, that opinion is not universal, so outcomes are inconsistent. The matter of shared residence could have been settled some 23 years ago, but for the wrongful interpretation by the then President of the Family Division of the Courts, Dame Elizabeth Butler-Sloss. Following the introduction of the Children Act 1989, Dame Elizabeth issued guidance which went counter to the intentions of Parliament. She informed the judiciary that:

‘shared residence orders should only be made in exceptional circumstances’7

10 years later, this position was reversed to some extent in common law, when the need for exceptional circumstances was removed, but still, shared residence remained uncommon, and now is common in some courts, but rare in others.8

Dame Butler-Sloss is now President of the Grandparents Association, an organisation which we have worked with closely in the past on various legal reform proposals and which has historically supported shared parenting. It will be interesting to see whether Dame Elizabeth represents the wishes of her charity or those of the Law Society, when the debate on shared parenting legislation comes before the House of Lords.

Does the Law Society represent the views of all the legal profession? No. We know many solicitors and barristers who have privately told us of their support for shared parenting. Perhaps the most articulate expression of support was given in the High Court by Sir Nicholas Mostyn, when he discussed the UN Convention on the Rights of the Child in relation to relocation cases: 

"...If one were to draw up a hierarchy of human rights protected by the Convention I would have thought that very near to the top would be the right of a child, while he or she is growing up, to have a meaningful participation by both of his parents in his upbringing. Although this is (strangely) not explicitly spelt out in the text it must be implicit in the notion of the right to a family life. Recognition of the existence of this very obvious and critically important right is sometimes, so it seems to me, lost in the relocation cases."9

Had Dame Elizabeth read Hansard reports, this matter may have been resolved two decades ago. If the Law Society became experts not just in law, but in child welfare, they might have supported shared parenting many years ago. The research evidence is there, but plainly, they remain unaware as they claim it doesn't exist. 

So put simply... why should there be a presumption of shared parenting in law... to help correct the inconsistency of outcome in family court proceedings and better safeguard the interests of children.

We hope the new President of the Family Division of the Court, once appointed, will issue new guidance and be a champion of this reform. Social policy should be set by elected members of Parliament...

End Notes
1. Read the proposed amendments here http://www.thecustodyminefield.com/download/sharedparentingamendment.pdf
2. Working Fathers, Earning and Caring’, Equal Opportunities Commission 2003 & ‘Completing the Revolution: The Leading Indications’, Equal Opportunities Commission 2007, London.
3. Tables are taken from 'Outcomes of applications to court for contact orders after parental separation or divorce.' Joan Hunt and Alison Macleod. Oxford Centre for Family Law and Policy. Department of Social Policy and Social Work University of Oxford. Family Law and Justice Division. September 2008
4. http://www.thecustodyminefield.com/Factsheets/TCM-ResearchSupportingSharedCare.pdf

5. The House of Commons reference sheet 89/5.13 on the Children Bill (26 June 1989)

6. AR (A Child: Relocation) [2010] EWHC 1346 (Fam) at paragraph 52

7.The Children Act 1989 Guidance and Regulations, Volume 1, Court Orders

8.  D v D (Shared Residence Order) (2001) 1 FLR 495

9. AR (A Child: Relocation) [2010] EWHC 1346 (Fam) at paragraph 53

Reshuffles, Reform and Predictions

It seems at first glance that Sir Humphrey Appleby is alive and well at the Palace of Westminster. Sir Humphrey, a senior civil servant, is a natural opponent of shared parenting. He shares the view of Lord Justice Ormrod that it is unnatural for men to want to involve themselves in child care. To accept that the current system is wrong, is to question his own spartan involvement in his children's upbringing, which ne'er interfered with club, profession or glorious 12th. Besides which, those jolly chaps in the legal profession, who happen to be a member of his club, don't want the great unwashed to challenge judicial discretion.

You may remember an episode (if you are of a certain age) when he discussed the need to 'move' a Minister who was too genned up on a situation. This week, at first glance, Sir Humphrey has achieved more moves than Pickfords.

A sigh of gloom came as Tim Loughton was removed from his position as Minister for Children. Why? Sir Humphrey surely. Tim is liked, respected, principled and the responses on twitter universally praise him. Tim is a long term advocate of shared parenting. Ahha... the first scalp. So far, there are articles saying Liz Truss and Edward Timpson have replaced Tim. Liz is focused on child care reform, while Edward Timpson is a family law barrister. Fingers crossed, but Tim will be a hard act to follow. Stories of Edward's work with organisations involved in finding missing children give us some hope. Maybe he'll help us to find Steve Moseley's daughter, or secure legal aid for parents fighting to recover their abducted children.

The law society and judiciary would have you believe that children are well served by the system. Only 60% of applications to the court for contact are successful. Of those which are successful, many see contact orders flouted within months (or days!), and it can then take months or years to go through the enforcement process. The system doesn't serve families, but it does serve itself, and certainly protect itself, rather well... but I digress.

Maria Miller is moved to the position of Culture Secretary in the midst of the important work she's been doing to provide replacement services for when legal aid is abolished. Maria had announced very publicly in the press that the number of fathers who lose contact with their children is scandalous (she certainly appeared committed on this subject). She had clearly developed views on this matter. A scalp for Sir Humphrey? Well... maybe not. It may be a panic move by Cameron since her role as Minister for the Disabled meant her role was becoming toxic. The campaigning against ATOS and disability benefit cuts is growing every day. It's clear that Dave Cameron is 'bricking it' about the negative press from disability benefit reform (and the boos towards George Osborne at the Paralympics won't have helped that anxiety). People in wheelchairs campaigning is an election loser. Move on Maria, and bring in the media savvy Esther McVey.

Esther's an interesting one (no, she's not pictured here with F4J, or at least we don't think so!). Clearly intelligent, with an excellent media and business background, a TV presenter, she was also instrumental in setting up the Madelaine McCann fund. She has a law degree. She's won plenty of awards, so a switched on cookie in terms of not only succeeding, but making sure others know she has succeeded, and managing the media as she does. Just what the disabled benefits axeman ordered!

The one certain positive from the reshuffle is Ken Clarke's exit as Justice Secretary... raise a glass (albeit, he's still floating about advising Dave)... and he's replaced by Chris Grayling, the last Culture Secretary. Chris... a non-lawyer (that will rock the MoJ tower but may give Sir Humphrey's wig wearing chums the opportunity to run rings round him). An interesting comment by Tim Dutton QC, former chairman of the bar, who said that Chris must fight hard for all the elements that make up the rule of law. Ah... but he isn't one of your chaps... and hopefully, he will fight for reform and change as the current system doesn't serve its users. Chris is known as the jackal of the Tory party, but let's remember that the MoJ and judiciary wore down Jack Straw. Our bet on Chris Grayling's motives? Cost cutting and reform... but likely related to economic rather justice improvements.

Funny how words are used... jackal... supposedly meaning savage, but the dictionary definition is more humorous a. An accomplice or a lackey who aids in the commission of base or disreputable acts. b. One who performs menial tasks for another. Let us hope he doesn't become the jackal of the MoJ.

What conclusion do we draw from the reshuffle? Is it a civil service plot to knobble family law reform? Possibly in terms of Tim Loughton's execution, but looking at the whole, the sensible conclusion is that this Government believes other matters take priority. Shared parenting has briefly fallen out of fashion as the Government deals with other crisis; with a strong lobby from the legal profession, MoJ and a small handful of third sector organisations. If it's to come back into fashion, there needs to be noise.

My prediction:

Children have a right to a meaningful relationship with both parents (or similar waffle) will be introduced to the Children Act. Children already have the right to family life, enshrined in the Human Rights Act and the UN Convention on the Rights of the Child. However, we see that statistically, only 60% of applications for contact orders result in staying contact? Without more prescriptive legislation setting out what meaningful family life actually means, nothing will change.

The second red herring. Politicians will tell us there is a presumption of shared parental responsibility. They think this means shared parenting... of course it doesn't. The idiot politician is befuddled on this matter and badly (or misleadingly) advised. Most parents have parental responsibility, but many don't even see their children, aren't included on decisions regarding choice of school, or medical treatment. Shared parental responsibility has no connection with shared care. An utter, and shameful red herring.

The campaigner who thinks he's achieved something needs to clear the wool out from in front of his eyes.

But all is not lost, in terms of reform...

Change must come. There must be more prescriptive legislation, and the way in which family law works will have to change. The days ARE numbered for the jolly, old boy's club of judicial discretion and the status that it carries. Why? After April 2013, the family courts will start to seize up. There will be an increasing number of litigants-in-person, when legal aid is pulled. The courts are barely coping as it is.

A harsh economic climate puts more stresses on families, and parental separations increase.

The naivety of no sanctions for false allegations of domestic violence, but legal aid for the accusers in Children Act cases means we will see a marked increase in cases involving domestic violence. The accuser gets all the help in the world, while the accused, if he/she cannot afford a solicitor, gets no protection or assistance at all. No doubt there will be a rush by either party to make the domestic violence allegation first? So much for Article 6 of the Human Rights Act.

We have already forecast that the courts will seize up due to an increase in more complex private law cases. Inevitably, we're going to see a marked increase in international relocation, abduction and retention cases as our demographics are changing rapidly. More than half of children born in London in 2010 were born to foreign born mothers. Nationally, that figure is 25%. 

A less attractive economic climate in the UK will make some foreign migrants rethink their place of habitual residence. A return becomes more likely.

All these factors will place a greater pressure on the courts, and Ryder's recommended judicial reforms fail to give adequate thought to increasing capacity.

Legislation must become more prescriptive, the courts less adversarial, and judicial discretion must be curtailed. Economically, it's inevitable, and that is something that no lobby or special interest group can block, regardless of whose friends they are. We will either have thoughtful, planned change, or panicked reaction. At the moment, the latter is more likely, and children and families will suffer.

Gender Wars? Nonsense - Family Law Reform and Opposition

The Government is proposing changes to family law to ensure that children benefit from a continued, meaningful relationship with both parents following separation.

Already we're seeing commentators attempting to draw battle lines between "mothers' groups and fathers' groups" as if only men support the changes, and women will naturally be opposed. It's a fallacy.

I know most of the groups that have been campaigning for shared care. Despite historic names, their memberships are made up from grandparents, mothers, step-parents of both sexes, and yes... fathers. The largest UK fathers' charity has had a woman as its chair for the last couple of years. Their offices are and have been staffed by men and women, and the women are no less passionate or dedicated to the campaign work and the reasons behind it.

Research is conclusive that children are disadvantaged when deprived of a father figure, and sadly, our family justice system has failed to safeguard children's welfare, and reflect parenting in the modern age. It is because of this failure that change is needed. We also know that society as a whole suffers from polarised as opposed to shared parenting. Teenage depression, delinquency, pregnancy, drug abuse are all linked to the reduction in the role or removal of the father.[1] Is this because men are more important parents than mothers? No, but the role and importance of fathers and the consequencial impact of loss has grown considerably. It's a matter of common sense (although one supported by research) that when you deprive a child of a significant attachment figure, the child suffers harm.

Since 1970s, the level of father involvement in intact families has increased nine fold. The level of father involvement in childcare averages just 15 minutes less per day... 15 minutes [2], yet when a couple separates, the children's relationship is often reduced to alternate weekends, and only this year, official figures confirmed 20% of children of divorce see that relationship severed completely.

Who led the concern about the number of children losing contact with a father? Maria Miller MP.

In 2009 I started a campaign to reform relocation related family law. While it was invariably mothers relocating with children (as 90% of children have mothers as primary carers), our arguments were based solely on child welfare rather than the rights of one or other of the genders. Two of the most vocal supporters for reform were from the UK's leading international family law firms... and were women. The MP who chaired the talks at Westminster was a women. At those talks, the representatives of the charity Reunite and the Centre for Social Justice were... women. To imply it is only men in super hero costumes who have been arguing for legal reform is a fallacy.

Bob Geldof wrote the foreword for our Parliamentary Briefing Report, and the press seized on his words 'The court is entirely informed by outdated social engineering models and contemporary attitudes rather than fact, precedent rather than common sense and modish unproven nostrums rather than present day realities. It is a disgraceful mess. A farrago of cod professionalism and faux concern largely predicated on nonsensical social guff, mumbo-jumbo and psycho-babble. Dangling at the other end of this are the lives of thousands of British children and their families.' [3]

His condemnation made the front page of the Mail and Telegraph, but the views of the Managing Partner of The International Family Law Group were no less damning:

'How can we, in the English legal profession, have gone so wrong, have failed so many children, have inadvertently engaged in gender discrimination almost 2 generations, have fallen so out of step with many other countries and, most of all, failed to acknowledge trends in parenting patterns, especially in international families, over the past 40 years?' [4]

The people in favour of family law reform and shared parenting care about child welfare. Those opposed, care about control, the protection of an industry which mainly serves itself, or are informed by personal experiences which are largely historic and bear little relation to modern family life.

Those opposed quote a small number of Australian studies, but if you read the detail of those studies, you'll find most are not opposed, and all admit to having relatively small and therefore unreliable sample sizes. Do these opponents point at the many other countries that now favour shared parenting... no. I've seen it written that a presumption of shared care has lengthened court proceedings in Australia, but those articles and blogs fail to mention that Australia's 'Less Adversarial Trial Scheme' which was intended to reduce the adversarial nature of proceedings was insufficiently resourced.

Those opposed state that each case must be judged on its own merits, but fail to point out that our system of family law makes outcomes a lottery based on the individual opinions, abilities and in some cases prejudices of the individual judge who hears the case. The 'wide ambit of judicial discretion' ensures inconsistency. I've seen cases, many cases with nigh on identical circumstances having entirely different outcomes. There has to be guidance, and detailed guidance, and the rights of the judiciary to independence should not trump the rights of children and families to consistent justice.

Reform of Family Law isn't about mothers or fathers winning or losing, but updating the law to reflect parenting in the current millenium, to give the best opportunities to children, and the greatest benefit to society as a whole.

It's time to have a sensible debate and outcome, and not one based on a battle of the sexes, protecting an industy, or a rigid adherence to out-of-date traditions. It's time everyone grew up, and put the welfare of children first.


1. Shared Care Research - The Custody Minefield.
2. Equalities Commission 2008
3. 'Moving country but losing the child: Reform and Resolution of Child Relocation Law and Practice' - Ann Thomas, managing partner of the International Family Law Group.
4. Family Law: Relocation - The Case for Reform - The Custody Minefield