Fighting a Losing Battle

the feminist campaign to enshrine a presumption of no-contact into family law

The Fathers’ Campaign

This tale is another story from the Culture War, with which you may well already be familiar.  I am going to talk a little about how the commitment of successive governments to enshrine shared parenting in law has become subverted by a powerful opposition.

By “shared parenting” I mean the philosophy that a child’s interests after parental separation are best served by allowing him or her a full and unobstructed relationship with both parents.

By “opposition” I mean the small but vociferous, well-funded and implacable lobby of feminists who believe that fathers are unnecessary and undesirable and that the mother should be the sole arbiter of who, if anyone, has any sort of relationship with HER child, without interference from the courts.

While the Court of Appeal generally respects the principle of shared parenting, many judges in the lower courts do not, and it is this opposition which means that common sense is not enough and that a father’s role must be protected in legislation.

Lord Justice Wall ruled in 2006,

Good reasons are required if a shared residence order is NOT to be made.  Such an order emphasises the fact that BOTH parents are equal in the eyes of the law, and that they have equal duties and responsibilities as parents.  The order can have the additional value of conveying the court’s message that neither party is in control and that the court expects parents to cooperate with each other for the benefit of the children.[1]

Lady Justice Macur described the court’s approach in 2015,

The starting point should be that the welfare of the child requires continuing and meaningful contact with BOTH parents.  This principle should only be displaced for compelling reasons on the clearest of evidence and only then when all reasonable avenues of promoting safe contact, both physically and emotionally for the child, have been considered and rejected.[2]

There isn’t the time here to present the huge body of evidence supportive of such legislation; child psychologist Richard Warshak surveyed forty-five years’ worth of scientific literature and had the endorsement of one hundred and ten of the world’s top experts.  He concluded unequivocally,

The evidence shows that shared parenting should be the NORM for children of all ages, including sharing the overnight care for very young children.[3]

Edward Kruk, Associate Professor of Social Work at the University of British Columbia and President of the International Council on Shared Parenting dismissed a study[4] arguing against shared parenting as “junk science,”

Shared parenting adversaries… are unable to dispute the overwhelming evidence in favour of Shared Parenting in regard to children’s well-being…[5]

We might also consider the case of Kentucky which, two years ago, became the first jurisdiction to introduce legislation enshrining that the child’s best interests required a rebuttable presumption of joint custody and equally shared parenting time.  “Rebuttable” means that if such a presumption is not appropriate in a particular case, it can be overridden by a “preponderance of evidence”.[6]  The burden of proof is on the opposing parent to show why shared parenting is not in the child’s best interests.

This law has been a “spectacular” success, with an 11% fall in court case-load, and a fall in domestic violence, despite a widening of the definition.[7]  Opposition continues to focus on the effect of the law upon the mother.

In England and Wales, it has long been clear that the courts do not protect the child’s relationship with both parents, and that one, most often the father, can become excluded.

For fathers, the problem is not that orders are not made in their favour, but that the orders are not complied with, “obtempered” as lawyers put it, or monitored for compliance, and that judges are peculiarly reluctant to enforce them.

Lord Justice Wall admitted in 2002 that the courts were “ill adapted to dealing with the difficult human dilemmas involved, notably when it comes to the enforcement of its orders”.[8]

Lord Filkin, Minister for the Family Courts, allegedly went further in 2004, “Any court that does not enforce its own orders is a sham”.

Most applications for enforcement are brought by fathers and most result in similar or identical orders being made.  A 2013 report found that only 1.2% of applications succeed.[9]

The equal parenting charity Families Need Fathers had been founded in 1974 by Alick Elithorn and Keith Parkin, who wrote,

Under common law, it was the father who took precedence; under statutory law it is now the mother who takes precedence.  Such are the whims of social fashions.  Previously, children were regarded as appendages of the authoritative father figure.  Now they are romantically viewed as extensions of the all-enveloping maternal ego.[10]

While the demands of FNF were modest, Mel Roman and William Haddad saw the value of a presumption of equally shared residence as early as 1979, in their book The Disposable Parent: the case for joint custody.[11]  They specifically envisaged shared parenting as a legal arrangement, ordered and enforced by a court.

The 1989 Children Act was intended with cross-party support to introduce a complete re-write of family law, and one of its aims was to tackle paternal exclusion,

The Children Bill, which emphasises the importance of both mothers and fathers in child rearing, will end the inhuman, callous and cruel practice of divorcing a child from one of his or her loyal and devoted parents.[12]

The House of Commons Reference Sheet on the Bill made clear:

In some cases, the order will provide that the child will live with both parents… More commonly, however, the order will provide for the child to live with both parents, but spend more time with one than the other.  If such an order is practicable, there is no reason to discourage it.[13]

On its tenth anniversary, Labour’s Lord Chancellor, Lord Irvine, affirmed,

The underlying philosophy of the Children Act is that parents have a shared responsibility for the upbringing of their children, even after the relationship between the parents has broken  down.  This reflects the Government’s belief that children generally benefit from a continuing relationship with both parents.[14]

The Act incorporated the principle that the welfare of the child was paramount, first written into English and Welsh law in the Guardianship of Infants Act 1925.

That Act, like so much legislation since, was a fudge: a compromise struck between Ramsay Macdonald’s government and early feminist groups.  It gave mothers equal rights in parental disputes brought before the courts, but did not make them “joint guardians” and the father remained the sole legal guardian of his legitimate children.

The welfare principle is well-intentioned, and has been incorporated into the family law of almost all jurisdictions, but it has fundamental flaws:

First, it transfers parental authority, not so much to mothers, as was the intention, but to the state, enabling unlimited state intrusion into family life.

This has the effect of pitting the child against his family.  Whereas the family had hitherto been viewed as the first and best protection of a child, under the welfare principle it becomes a threat, which must be neutralised by the intervention of the courts and social services.

Secondly, it does not define welfare – or where the child’s best interests lie – which is left to the discretion of the judge, contrary to Aristotle’s axiom that, “the best laws should be constructed so as to leave as little as possible to the discretion of the judge”.

The 1989 Act did not rectify this omission.

By the time Labour came to power in 1997, it was evident that the Act was not working and the difficulties fathers faced had not lessened.  Between 40[15] and 60%[16] were losing all contact after separation.

The family itself had been redefined by the Government as a mother, her children and, optionally, her partner.

In 2002, Labour commissioned a report, Making Contact Work, which recognised the problems of paternal involvement but failed to suggest any concrete reforms beyond more money for the newly-formed CAFCASS and more contact centres – those departure lounges of chipped Formica, cast-off toys and abandoned hopes.[17]

A number of committees and subcommittees was established, one of which was given the task of meeting with fathers’ representatives.

The fragmented fathers’ groups came together in a makeshift “Coalition for Equal Parenting”, but it became clear to them that the committee’s mandate was not to make contact “work”, but to make it “safe”.

They said that a “presumption of contact” would not be “helpful” – whatever that meant.

The delegates abandoned the meetings and the group Fathers 4 Justice was born.[18]

Labour ended up doing nothing to make contact work.  Instead, they introduced gay adoption and civil partnerships, reforms which benefited a small minority but left unaffected the great calamity of family breakdown, which was estimated in 2000 to cost the economy some £30 billion.

To say nothing of the human cost.

The Failure of the 1989 Act to define where a child’s best interests lay was its Achilles heel.  Although the Government had expressed – through Lord Irvine – its commitment to the promotion of shared parenting, it came to be subverted by other ministers such as the Minister for Children Margaret Hodge,

The position of the government is that Parliament’s intention was that shared residence should NOT be a common form of order…  By its very nature…, shared parenting requires a high degree of cooperation between parents… cases that reach the court arena have inevitably gone beyond the stage where this level of mutual cooperation can be achieved.

Fathers’ demands for a rebuttable presumption of contact were in line with international conventions such as the United Nations Convention on the Rights of the Child, Article 4 of which requires,

A child and his or her parents shall have the right to obtain and maintain regular contact with each other.

Such contact may be restricted or excluded only where necessary in the best interests of the child.

Where it is not in the best interests of a child to maintain unsupervised contact with one of his or her parents the possibility of supervised personal contact or other forms of contact with this parent shall be considered.

Article 9 requires,

States Parties shall take all appropriate measures to ensure that contact orders are carried into effect.

In 2004, Fathers 4 Justice condensed the thinking of the fatherhood movement into a manifesto, A Blueprint for Family Law in the 21st Century: The Case for Urgent, Radical Reform.[19]

It called for a presumption of shared parenting, for the replacement of contact and residence orders by “Parenting Time Arrangements”, to be set out in a “Parent Share Plan”, and for court litigation to be replaced by mandatory mediation sessions.

The Conservatives’ radical reform of family law 10 years later,[20] with its introduction of a presumption of parental involvement, the replacement of existing orders with “Child Arrangements Orders” expressed in parenting plans, and its insistence on mediation before parents resort to court is about as close to the Blueprint as practicable reform is likely to get.

This similarity was not the result of the Conservatives giving in to fathers’ demands, but of two disparate groups of well-intentioned people considering the same problem and arriving independently at the same solution.

How different things might have been if this level of carefully researched and argued campaigning had been maintained.

The really cunning aspect of the involvement presumption – like Kentucky’s new law – was that it incorporated the right of a child to be parented by both parents into the definition of the child’s welfare and thus re-interpreted the concept to include shared parenting.

A court… is as respects each parent…to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.

This undermined the argument of those opponents of shared parenting who held that any presumption would contradict the paramountcy principle.  One MP on the Bill Committee, Caroline Nokes, summarised:

By inversing the subject of the legal right, and introducing a clause which gives this ‘right’ not to the parent, but to the child, the Government achieves the twin objectives of enshrining shared parenting, whilst maintaining the paramountcy of the child’s welfare.[21]

It was very clever, and a remarkable rejection of the recommendations of the Family Justice Review, conducted by Sir David Norgrove, which had misrepresented and fabricated evidence to argue against shared parenting, yet F4J refused to endorse the reform, and subjected Nokes to an unfathomable hate campaign (Dugan, Fathers 4 Justice and the mother of all hate campaigns?, 2015).[22]

Various MPs have striven to get shared parenting onto the statute book – Charlie Elphicke and Brian Binley in 2010, Adrian Sanders in 2012, George Galloway in 2013, and Suella Fernandes in 2017.  Labour’s response is typical of government reaction,

The Government understands that some people believe a legal presumption of contact is needed to stop the courts from denying contact to perfectly fit parents without good reason.  However, the Government does not believe a presumption of contact could ever be the solution in contact cases.

Theresa May acknowledged at the 2004 Conservative Party Conference that the Children Act had failed to alleviate the admitted problems within the system,

Normal parents are being prevented from caring for their children.  In some cases, prevented from seeing their children at all.  We believe that the best parent is both parents.

That is why, in my first month in Government, I will publish a Bill to give a presumption of co-parenting and a right for both parents to be involved in bringing up their children, when couples separate.  We will ensure that the law serves the best interests of the child – and children deserve to see both parents.[23]

She never honoured her pledge.

The Counter Campaign

Opposition to the call for a presumption of shared parenting is expressed in the counter demand for a presumption of NO contact between fathers and their children unless and until it can be PROVEN that it will be safe – an impossible prerequisite.

Initially, this demand was made only in relation to cases in which domestic violence or abuse were alleged, but such subtlety is usually elided; why?  Because there is a need to conflate allegations with actual abuse; otherwise one might reasonably question why allegations of rape, child abuse, assault, sexual assault, murder and other violent crimes are not dealt with in the criminal courts.

Increasingly, the claim is made that the family courts follow a policy of “contact at any cost”, that the courts push for contact between fathers and their children at the expense of children’s safety, and sometimes, of children’s lives.

This claim was made in an influential 1996 study, based on interviews with just fifty-three mothers.

Its authors recommended, “the starting point should be the presumption of no contact,” and that, even where there is NO risk, contact should always be supervised.[24]

In 2000, the Official Solicitor commissioned guidance on a group of four similar court cases from a child psychiatrist and popular expert witness, Claire Sturge.  She involved another psychiatrist, Danya Glaser, who specialised in the sexual abuse of children by men.

They were influenced by Audrey Mullender, highly respected principal of Ruskin College, Oxford, who had advocated at the 2001 Regents Park Conference “a rebuttable presumption of no unsupervised contact unless evidence can be produced that it will be safe”.[25]

In the same year, in their book Home Truths about Domestic Violence, professor of women’s studies Jalna Hanmer and theatre critic Catherine Itzin had demanded “a rebuttable presumption of no contact until it can be shown to be safe for all parties”.[26]

Sturge and Glaser concluded that contact within a contested case will always be harmful, and should take place only when supportive of the resident parent,

If anything the assumption should be in the opposite direction and the case of the non-residential parent one of proving why he can offer something of such benefit not only to the child but to the child’s situation.[27]

By which they presumably meant the primary carer, the mother.

The judge in the cases, Elizabeth Butler-Sloss, agreed, and confirmed at the same conference – contrary to legislation – that professionals’ paramount concern should not be the protection of the child, but that of the primary carer.[28]

The most enthusiastic proponents of the “contact at any cost” myth are the federation of women’s groups known as Women’s Aid.

Women’s Aid grew out of the radical separatist feminist movement of the 1970s; it is steeped in the belief that the family is the source of women’s oppression, and tirelessly denies women’s violence, while it spins lies about the extent of the violence of men.

Women’s Aid had subverted the intention of Labour’s consultation Making Contact Work by introducing the dangers of contact in cases of domestic violence.

This had already been dealt with in an earlier report to the Lord Chancellor in 2000,[29] and the focus now was on ordinary cases without violence, but the aim shifted nevertheless to allowing contact only where it could be proved to be safe.

In 2004, the Women’s Aid policy officer, Hilary Saunders, produced a dramatic document, Twenty-Nine Child Homicides, purporting to show that the courts were so biased in favour of paternal contact that they were knowingly and repeatedly sending innocent children to their deaths.[30]

Saunders had trawled through ten years of Serious Case Reviews documented by the NSPCC, picking out only those cases which appeared to confirm her thesis.  An analysis of the same source material showed that in the same period, 800 children had died at the hands of their resident parents or carers.[31]

On behalf of the judiciary, Lord Justice Wall, reporting to the President of the Family Division, examined her claims, and found that eighteen of the twenty-nine children had never been subject to any court proceeding at all.[32]

Of the eleven children who had, the deaths of eight could not have been predicted or prevented.  The remaining three had been consent orders brought to court for judicial sanction; there had been no reason for the court to have refused the orders.  Judges had followed the guidelines and acted honestly.

Saunders had been profoundly dishonest and inconsistent, condemning judges for ordering contact, for example, but not mothers for agreeing to it.

Wall recommended that the Family Justice Council should consider what approach the courts SHOULD take to cases in which allegations had been made and report back to Women’s Aid.

A research paper was written by members of the notorious Oxford Centre for Family Law and Policy, Joan Hunt and Ceridwen Roberts, which dismissed the plentiful evidence for the benefits of paternal contact.[33]

The FJC report which followed, Everybody’s Business, relied on three exceptional cases involving dysfunctional families in which violence and drug-taking were habitual and took them as representative of all cases, claiming (falsely), “there is no empirical evidence of the positive benefits of contact per se” and recommending a change in court culture to approve contact only where it could be proved to be safe.[34]

The report led to a new Practice Direction 12J, instructing judges on how to approach cases involving allegations of domestic violence; it was only concerned with violent contact parents and gave no thought to protecting children already living with an abusive parent.

The court application form was redesigned, encouraging litigants to submit allegations at the start of proceedings before the court had invited such evidence; this was inflammatory and damaging to the possibility of reaching agreement without going to an all-out contested trial.  A 2011 redesign removed the requirement to provide evidence of alleged abuse or violence.

An attempt to introduce a presumption of contact into the Children and Adoption Bill 2004 was unsuccessful, due largely to the scaremongering of its opponents; in a briefing paper, the NSPCC claimed such a presumption would encourage fathers to harm their children,

NSPCC believes that any proposals to introduce into the Bill a legislative presumption of contact will be interpreted and put into practice by the courts in a way which is detrimental to the welfare of the child and could ultimately threaten the safety of the child.[35]

MP Tim Loughton called the briefing “alarmist, sensationalist, misleading, empirically flawed, completely irresponsible and highly reprehensible;”[36] it contradicted its own research.[37]

In 2016, Women’s Aid trawled through another ten years’ worth of Serious Case Reviews and published a further dossier, Nineteen Child Homicides: What must change so children are put first in child contact arrangements and the family courts, which formed the backbone of their Child First campaign.  In the Foreword, chief executive Polly Neate, claimed,

There is a deeply embedded culture that pushes for contact with fathers at all costs.[38]

This time, the judiciary failed to respond to the profoundly serious allegation, meaning that the access Lord Justice Wall had had to the earlier cases was not available.  Nevertheless, it was apparent that the courts had actually made orders for contact in only five of the cases.

Unwittingly, the report revealed that the problem is one limited to very dysfunctional families with high levels of drug and alcohol abuse and poor mental health; seven, possibly eight, of the twelve fathers had committed suicide, a further two had attempted suicide.

There was no evidence to support a presumption of no contact.

Some of the statistics came from an article, Contact at all costs? Domestic violence and children’s welfare, written by academic and former barrister, Adrienne Barnett, and were based on the PERCEPTIONS of a handful of professionals.[39]

In her doctoral thesis, of the same title, Barnett had rejected evidence, reason and logic as instruments of the patriarchy and called for a feminist methodology based on emotion and perception.[40]  This has become a recurring theme, with mathematics, science and even correct grammar associated with patriarchal oppression and white supremacy.

William Collins went back to the source material for Women’s Aid’s claims, the NSPCC Serious Case Reviews which covered the deaths of 332 children.  He found that mothers were the sole killers of 97 and co-killers of 57; fathers were the sole killers of 63 and co-killers of 41.[41]  Mothers were thus a greater danger to their children than fathers, and single mothers were the demographic most dangerous. 

This analysis, using the logic applied by Women’s Aid, would lead to the conclusion that mothers should have no contact unless they were able to PROVE it would be safe, yet no one seriously advocates such a draconian approach, and rightly so: it would be madness if these rare and exceptional cases were to influence the outcomes for ordinary families.

Blogging barrister Lucy Reed accused the researchers of using gendered search terms to confirm their prejudices; she identified “a strong ethos of ‘contact wherever safe’ which is not the same thing”.[42]

The “contact at any cost” myth is without any evidential support, and yet it dominates the narrative.

Following pressure from feminist MPs such as Jess Phillips, a former Women’s Aid worker, the Commons held a debate to discuss the way the courts handle cases in which allegations are made of domestic abuse; the session opened with the appalling case of Claire Throssell – who was in the visitors’ gallery – whose two children were burned to death by their father.  Throssell had agreed to contact, so the case was irrelevant to the campaign.  Such a highly emotive case prevented rational discussion of the issue.

The MPs made extremely serious allegations of the courts; Sarah Campion said they were “knowingly placing children directly in harm’s way”.  Paul Scully accused judge Lady Justice Hogg of having “blood on her hands”.  Madeleine Moon argued that “family courts mistake fathers’ persistence over access… for their taking an interest in their children, when it is intimidation and bullying of their former partner”.

CAFCASS, whose job it is to prepare independent reports on parents and children for the courts, produced a paper jointly with Women’s Aid, repeating the allegations against the judiciary, though no attempt was made to confirm that domestic abuse had actually occurred in the cases in which it was alleged.[43]

The Women’s Aid position relies on the deaths of just six children over twenty years, and a great deal of anecdote and perception; it ignores all other evidence against the “contact at any cost” myth and it is not child-focused.  While contact is sometimes not in a child’s best interests, in the majority of cases, it is.

Through its silence, the judiciary seemed to accept the allegations.  Mr Justice Cobb was given the task of re-writing Practice Direction 12J, originally introduced following the fraudulent Twenty-Nine Child Homicides report.  It shifted the courts’ attention away from the welfare of the child towards that of the mother.  Cobb sought to remove the presumption of involvement, a step beyond his judicial authority.  The revision was founded in a feminist understanding of interpersonal abuse, far removed from the reality.  It failed to provide for cases where it was the applicant making the allegation of abuse, for example; it only protected the custodial parent.[44]

12J is now used to prevent ongoing relationships between children and their parents while reports are prepared into false allegations; it has been of no benefit at all to children.

As William Collins observed, the problem with the Practice Direction was ”the absolute stranglehold that the feminist lobby has on the narrative – and hence public perception – of domestic abuse”.[45]

The 2017 Conservative Party Manifesto had acknowledged that “The family courts need to do more to support families, valuing the roles of mothers and fathers”,[46] to which end, the Minister for Justice, Lucy Frazer, had told the Commons in February 2018 that a Green Paper was being prepared on the family justice system.[47]

But by March, this had been dropped and, in the 2019 Manifesto, the focus was on domestic abuse.  In May, the Government was following the feminist agenda by looking once more at Practice Direction 12J, the extension of Section 91(14) barring orders and applications for contact by perpetrators of alleged abuse.[48]

In June, it reported the inaugural meeting of the Family Justice Panel, a 13-strong feminist coven, including two representatives from Women’s Aid but none from organisations representing fathers or male victims of domestic abuse.[49]  Indeed, when Families Need Fathers and others objected to the original 11 members, two additional feminists were enlisted.  Aside from some ministry officials, the panel comprises precisely those, from Women’s Aid, from the judiciary, and from academia, who have been most active against fathers’ involvement.

A month later, a public consultation was launched, running to the end of August, inviting self-identifying “survivors of domestic abuse and other harmful conduct … to share their experiences of how well the family courts protects [sic] them and their children in private family law proceedings” and, terrifyingly, to “shape the future of the family court”.[50]

The Panel published a progress report in October, stating that over twelve hundred responses had been received, and meetings held with some of those who had responded.

The problem of how to make contact work was long forgotten, and the narrative now was how to counter aggressive applications for contact from abusive fathers.

The Panel published their final report in the Spring of 2020, claiming that the presumption of involvement reinforced the “pro-contact culture” and must be revised.[51]

Myths are presented as suppressed truths, while the reality is denied and obscured.

A Working Group on Private Family Law, set up by Sir Andrew MacFarlane, President of the Family Division, and headed by Mr Justice Cobb, deferred its own conclusions until publication of the Panel’s report.

It is likely its progress will be slow, commencing with interim reports and pilot schemes.  MacFarlane’s statement was notable for its admission that the long-accepted figure of 10% for separating parents who take disputes to court was wrong and that the correct figure was closer to a third, as fathers’ groups had always maintained.[52]

The success in Kentucky, and probable forthcoming success in other states, is down to one organisation, the National Parents’ Organization.  This has no equivalent in England and Wales; where ego-dominated groups still cannot put aside their differences, cannot look at the issue through anything but a gendered lens and cannot put the interests of children before those of adults.

The Domestic Abuse Bill presently making its way through Parliament will make it more difficult to challenge a false allegation of abuse, by denying the right to cross-examine an accuser, and to pursue an application for contact once such an allegation has been made, a task already made more difficult by the withdrawal of legal aid to the accused, but not to the accuser.

Reforms intended by the Government will treat claimants of domestic violence as victims, protecting them in separate waiting rooms and behind screens, increase the use of barring orders and retrain judges according to feminist dogma.

At the same time, the judiciary are taking advantage of the mood to evade their statutory obligation to enforce Child Arrangements Orders.

Of greater concern is that the hard-won presumption of involvement is itself under serious threat.  Removal of the presumption would be catastrophic to children and a green light to abusers; children already denied contact would have no chance.  It would further promote the theory that all men are violent and abusive and feminists will have taken another great stride forward to achieve their ultimate goal: the destruction of the family.


[1] Re P (Children) [2006] 1 FCR 309.

[2] Re M (a child) [2015] EWCA Civ 1296.

[3] Warshak, R. A. (2014, February). Social Science and Parenting Plans for Young Children: A Consensus Report. Psychology, Public Policy, and Law, 20(1), 46–67.

[4] Tornello, S., Emery, R., Rowen, J., Potter, D., Ocker, B., & Xu, Y. (2013, August). Overnight Custody Arrangements, Attachment, and Adjustment Among Very Young Children. Journal of Marriage and Family, 75(4), 871-885.

[5] Kruk, E. (2013, July 23). Email from Edward Kruk to Kevin Gardner and Peter Tromp of the Platform for European Fathers.

[6] House Bill 528

[7] Hale, M., 2019. Kentucky’s popular joint custody law shows why it’s the most effective at helping families. Courier Journal, 14 December.

[8] Children Act Sub-Committee of the Advisory Board on Family Law. (2002). Making Contact Work: A Report to The Lord Chancellor on the Facilitation of Arrangements for Contact between Children and their Non-Residential Parents and the Enforcement of court Orders for Contact.

[9] Trinder, L., McLeod, A., Pearce, J., Woodward, H., & Hunt, J. (2013). Children and Families Bill: Memorandum of evidence. Nuffield Foundation.

[10] Parkin, K. (1974, June 12). Fathers need their families. The Guardian.

[11] Roman, M., Haddad, W., & Manso, S. (1979). The Disposable Parent: the case for joint custody. New York: Penguin.

[12] Hansard. (1989, April 27).

[13] House of Commons, 1989. Reference Sheet 89/5.13, 26 June.

[14] Irvine, R. H. (1999, May 8).

[15] Bradshaw, J., & Millar, J. (1991). Lone parent families in the United Kingdom, DSS Research Report No 6. London: Her Majesty’s Stationery Office.

[16] Butler-Sloss, E. (2003). Paul Sieghart Memorial Lecture. British Institute of Human Rights. London: King’s College.

[17] Advisory Board on Family Law: Children Act Sub-Committee. (2002). Making Contact Work, a report to the Lord Chancellor on the facilitation of arrangements for contact between children and their non-residential parents and the enforcement of court orders for contact. London.

[18] Whiston, R. (2008, June 27). Elimination of shared parenting – The Children Act 1989: Appendix A: Minutes of the Meeting that took place on Tuesday 29 October 2002 at 1.00pm with the ‘Coalition for Equal Parenting’ (CEP). Retrieved from robertwhiston.wordpress.com.  The account of the meeting derives from this source which I take to be more reliable than Matthew O’Connor’s version in Fathers 4 Justice: the inside story.

[19] Burch, G., & Cox, M. (2003). A Blueprint for Family Law in the 21st Century. Fathers4Justice.

[20] The Children and Families Act 2014.

[21] Nokes, C. (2014, February 12). Caroline Opposes Lords’ Amendment to Children & Families Bill on Shared Parenting. Retrieved from http://www.carolinenokes.com.

[22] Dugan, E. (2015, November 27). Fathers 4 Justice and the mother of all hate campaigns? The Independent.

[23] May, T. (2004). I will put the family at the heart of government. Conservative Party Conference. Bournemouth: Conservatives.

[24] Hester, M., Radford, L., & Føgh, M. (1996, July). Domestic Violence and Child Contact Arrangements in England and Denmark. Childright, 128, 3-4.

[25] Whiston, R. (2011, December 14). Regents Park Conference 2001: Prof. Audrey Mullender. Retrieved from genderviolence.wordpress.com.

[26] Hanmer, J., & Itzin, C. (2001). Home Truths About Domestic Violence: Feminist Influences on Policy and PracticeA Reader: Feminist Influences on Policy and Practices: a Reader . Routledge: Abingdon.

[27] Sturge, C., & Glaser, D. (2000). Contact and Domestic ViolenceThe Experts’ court Report, Fam. Law 615.

[28] Butler-Sloss, E. (2001). Children and Domestiv Violence: the effects and the implications for contact. Regents Park Conference. London: Children Law UK.

[29] Advisory Board on Family Law: Children Act Sub-Committee. (2002). Making Contact Work, a report to the Lord Chancellor on the facilitation of arrangements for contact between children and their non-residential parents and the enforcement of court orders for contact. London.

[30] Saunders, H. (2004). Twenty-Nine Child Homicides: lessons still to be learnt on domestic violence and child protection. Women’s Aid.

[31] Hansard. (2006, March 2, Column 438).

[32] Wall, N. (2006). A report to the President of the Family Division on the publication by the Women’s Aid Federation of England entitled Twenty-Nine Child Homicides: lessons still to be learned on domestic violence and child protection.

[33] Hunt, J., & Roberts, C. (2004). Child contact with non-resident parents, Family Policy Briefing 3. Oxford: Department of Social Policy and Social Work, University of Oxford.

[34] Craig, J. (2007). The Family Justice Council’s Report and Recommendations to the President of the Family Division, ‘Everybody’s Business’How Applications for Contact Orders by Consent Should be Approached by the Court in Cases Involving Domestic Violence. London: Family Justice Council.

[35] Quoted by Tim Loughton MP, Hansard. (2006, March 2, Column 438).

[36] Hansard. (2006, March 2, Column 438).

[37] Cawson, P., Wattam, C., Brooker, S., & Kelly, G. (2000). Child maltreatment in the United Kingdom: a study of the prevalence of child abuse and neglect. NSPCC.

[38] Women’s Aid. (2016). Nineteen Chld Homicides: what must change so children are put first in child contact arragnements and the family courts. Bristol: Women’s Aid.

[39] Barnett, A. (2014). Contact at all costs? Domestic violence and children’s welfare. Child and Family Law Quarterly, 26(4), 439.

[40] ‘These perspectives… reject the purely positivist notion of scientific objectivity, including the privileging of “scientific” research, which has been criticised for perpetuating patriarchal power relations, and the silencing of women’s voices.’  Barnett, A. (2014). Contact at All Costs? Domestic violence, child contact and the practices of the family courts and professionals. A thesis submitted for the degree of Doctor of Philosophy.

[41] Bradford, R. (2016, February). 332 Child Homicides. Retrieved from The Illustrated Empathy Gap.

[42] Reed, L. (2016, February 14). Nineteen Child Homicides. Retrieved from pinktape.co.uk.

[43] CAFCASS, Women’s Aid. (2017). Allegations of domestic abuse in child contact cases. CAFCASS & Women’s Aid.

[44] Families Need Fathers; Both Parents Matter Cymru. (2017). Joint Review of Draft Practice Direction 12J. London: Families Need Fathers.

[45] Collins, W. (2017, September 18). Practice Direction 12J. Retrieved from The Illustrated Empathy Gap.

[46] The Conservative and Unionist Party. (2017). Forward Together: Our plan for a stronger Britain and a prosperous future. Retrieved from https://s3.eu-west-2.amazonaws.com/conservative-party-manifestos/Forward+Together+-+Our+Plan+for+a+Stronger+Britain+and+a+More+Prosperous….pdf

[47] Frazer, L. (2018, February 01). Family Proceedings: Written Question – 125250. Retrieved from http://www.parliament.uk: https://www.parliament.uk/written-questions-answers-statements/written-question/commons/2018-01-29/125250

[48] Ministry of Justice. (2019, May 21). Press Release: Spotlight on child protection in family courts. Retrieved from http://www.gov.uk: https://www.gov.uk/government/news/spotlight-on-child-protection-in-family-courts

[49] Ministry of Justice. (2019, June 21). News Story: Family Justice Panel update. Retrieved from http://www.gov.uk: https://www.gov.uk/government/news/family-justice-panel-update

[50] Ministry of Justice. (2019, July 19). Press Release: Domestic abuse survivors invited to shape future of family court. Retrieved from http://www.gov.uk: https://www.gov.uk/government/news/domestic-abuse-survivors-invited-to-shape-future-of-family-court

[51] Hunter, R., Burton, M., & Liz, T. (2020). Assessing Risk of Harm to Children and Parents in Private Law Chldren Cases: Final Report. London: Ministry of Justice.

[52] McFarlane, S. A. (2019, December 18). View from the President’s chambers, December 2019: . Retrieved from judiciary.uk: https://www.judiciary.uk/announcements/sir-andrew-mcfarlane-view-from-the-presidents-chambers-december-2019/

ICMI20

The International Conference on Men’s Issues 2020 opened on Friday. Click on this link to access videos from 120 speakers. My own contribution will go live on Tuesday evening at 21:00.

https://avoiceformen.com/featured/icmi20-speakers-list-timetable-link-to-miss-matthews-and-her-naughty-young-ladies-video/

10%

In 2003, academics Fiona Blackwell and Alison Dawes produced a report for the Department for Constitutional Affairs, “Non-Resident Parental Contact”.  One of its findings was that only 11% of successful post-separation arrangements between parents concerning their children were made by the courts.

The remaining 89% were made by the parents themselves without court intervention, often using intermediaries such as mediators and solicitors.

The figure showed what a very ineffective place the court was for resolving these disputes.

The following year, the statistic – rounded down to 10% – found its way into a Government Green Paper published by the Departments for Constitutional Affairs, of Education and Skills, and of Trade and Industry, “Parental Separation: Children’s needs and parents’ responsibilities”,  The paper misrepresented the figure, claiming, “only 10 percent of separating couples with children have had their contact arrangements ordered by the courts”.

The 10% figure was taken up eagerly by ministers, academics and agencies such as the newly-formed Cafcass.  It enabled all of them to claim that the parents who end up resolving their disputes in court represent a minority of highly conflicted parents; they were often violent, generally dysfunctional, and unable to put the interests of their children before their own petty squabbles.

These parents were in court entirely through their own faults, it was therefore unjust to blame the courts or the system for any difficulties there might have been in resolving their cases, and unreasonable to expect too much money, time or research to be spent finding ways to move their cases forwards.

Over the years, minister after minister washed his or hands of the problem, always siting the magical 10% figure.  For example, in a Commons debate on Family Justice on 13th December 2004 Margaret Hodge said, “Nine out of 10 families, when they separate or divorce, deal with the issues of parental responsibility between themselves”,[1] while Lord Adonis said “about 90 per cent of separating parents make provision for bringing up their children, including contact arrangements, without recourse to the courts.” [2]

The trouble was, the figure was completely false.

In a report for the fathers’ campaign group Fathers 4 Justice, “Family Justice on Trial,” I wrote,

Fathers 4 Justice have always disputed this figure, though again the evidence is not recorded to calculate it precisely: In 2008 there were about 70,000 divorces involving children, 113,000 court applications and 80,000 contact orders; the 10% figure simply isn’t credible.

We estimated the true figure to be between 30% and 40%, and the former Children’s Minister, Margaret Hodge, confirmed this in a letter to Gary Burch of Fathers 4 Justice in 2003,[3] ‘We commissioned the Office of National Statistics (ONS) to undertake a survey on non-resident parental contact.  The survey found that 60 percent of couples were able to make their own arrangements.’

Recently, Michael Lewkowicz, Director of Communications at Families Need Fathers, has had another go at resolving this issue.  As he says, it doesn’t take “a mathematical genius” to realise that the figure cannot possibly be true,

… there are some 50,000 court applications each year, less 30% return cases leaves 35,000 new applications.  If these represent 10% of separations, then the implication is that there are some 350,000 break-ups a year.  Assuming an average of 2 children per case (Cafcass average figures) implies 700,000 children involved.  Since the number of births in England and Wales in 2017 was 679,106, the figures suggested that every single family separated before their children left school.  Spot a problem?  We did.

Where others had failed, Lewkowicz, finally, was successful, and secured a grudging admission from Cafcass that the true figure is 38%, which we may be sure is a low estimate.

The implications are huge.

Ministers cannot hide behind this figure any longer.  The parents who are forced to use the courts in order to resolve parenting disputes are not bad parents; they are not violent, they are not highly conflicted, they are not dysfunctional: they have just found it very difficult at a time of high personal distress to agree parenting arrangements with another parent whom they may well hold responsible for the breakdown of their relationship.

A useful tool to understand these disputes is the Kübler-Ross curve of the stages of grief on which parents move through the stages of denial, anger, bargaining and depression to final acceptance.  Parents who are not at the same position – and most are not – will not be able to negotiate effectively with each other until both have caught up, and will consequently need outside support and guidance.

By entering the courts, parents have fallen foul of a system that does not work.  As has been well known for many years, the courts tend to polarise parents and entrench differences; by taking decision-making away from parents and imposing an adversarial approach, the divergence they approach court with, which in other circumstances would be transitory, becomes set in stone, and is exacerbated by opposing legal teams.  Where parents must represent themselves, as is becoming more and more the case, the stress of navigating their way through a complex legal process adds to the conflict.

The former President of the Family Division, the late Lord Justice Wall, was particularly concerned by this fact; in a key 2002 report to the Lord Chancellor by the Children Act Sub-Committee, which he had chaired, he had written,

The court process is stressful for both parents and children, it is expensive for those who are not publicly funded; it is slow and adversarial.  It tends to entrench parental attitudes rather than encouraging them to change.  It is ill-adapted to dealing with the difficult human dilemmas involved, notably when it comes to the enforcement of its orders.

In a 2003 case he repeated this criticism,

The litigation process is adversarial and counter-productive.  It entrenches attitudes rather than encouraging them to modify.  It tends to focus on the arguments of the parents, not the needs of the child.  It puts particular pressure on the divided loyalties of children.

In a 2004 paper entitled Are the courts failing fathers? he said it again,

Unfortunately, the cases which have to go into this adversarial system are those least likely to benefit from it… the adversarial system is adult orientated.  It focuses on the position of the parents, not of the child, and thus has the tendency… to entrench attitudes rather than encouraging them to modify.

While report after report has acknowledged this, nothing effectively has changed, and the 10% figure has provided an excuse.  No longer.

Lewkowicz is to be congratulated on forcing an admission out of Cafcass.  I don’t know how aware he is, however, of the history behind this particular lie; clearly it has been known to be false almost since it was first told.  As a result, I don’t know how much, if anything, will actually change.

 

[1] Hansard, 13 December 2004 column 1462, http://www.publications.parliament.uk/pa/cm200405/cmhansrd/vo041213/debtext/41213-25.htm

[2] Hansard, 29 June 2005,  http://www.publications.parliament.uk/pa/ld200405/ldhansrd/pdvn/lds05/text/50629-04.htm

[3] Margaret Hodge: ‘We commissioned the Office of National Statistics (ONS) to undertake a survey on non-resident parental contact.  The survey found that 60 percent of couples were able to make their own arrangements.’ 21 September 2003.

Beowulf Fitt XX

I have been spending idle moments this year translating the great Old English epic Beowulf.  Here is a little sample for your festive delight.

Heorot, the seat of Danish King Hrothgar, has been troubled by a murderous demonic creature which raids the mead-hall at night and makes off with the warriors. Beowulf has come over the sea from Sweden and has fatally wounded the creature by tearing off its arm, which now hangs over the doorway. Now its mother seeks revenge. The remains of Æschere have just been found; he was Hrothgar’s rúnwita and rǽdbora (confidante and counsellor). The following morning, Beowulf, unaware of what has happened, asks Hrothgar if he slept well; Hrothgar replies:

 

“Ask not after pleasure: pain is renewed
for the Danish people; Æschere is dead,
the elder brother of Yrmenlaf,
my confidant and my counsellor,
brother at my shoulder, when we in battle
covered our heads, when the foot-soldiers clashed,
bashed boar-helms; so it behoves a man
to be tested of ages; so Æschere was.
There was for him in Heorot a slayer-by-hand,
a wandering death-ghast, I know not whither,
rejoicing in terrible carrion, she made her return,
replete from her feasting.  She wrought her revenge
in which you yesternight by unyielding means
quelled Grendel in your harsh grasp,
because he over-long cast down and looted
my people.  Having paid with his life,
he fell in the contest, and now comes that other,
mighty man-scathe.  She would avenge her kinsman
and very far has visited her vengeance,
so must it be thought by many a thegn
who grieves in his mind for the gift-giver,
harsh heart-sorrow, now that hand is fallen,
which for nigh each one of you had granted wishes.
I have heard it said by my hall-people,
the country-dwellers, court-counsellors,
that they had seen two such
mighty marsh-steppers haunting the moors,
outlandish spirits. One of them was,
as definitely as they might determine,
in the likeness of a woman, the other weakly shaped
in a man’s outline trod an outcast’s path,
and yet he was more than any other man.
In the days of old the earth-dwellers
had named him ‘Grendel;’ they knew not of a father,
nor whether any such had been begotten before,
of obscure spirits. A secret land they
inhabited, wolf-hillsides, windswept headlands,
perilous marsh-causeways, where the mountain stream
dived downwards beneath the cliff-darkness,
the flood beneath the earth. It is not that far hence
measured in miles, that the mere lies:
rime-frosted groves reach over it,
root-fast woods over-shade the water;
there every night one can see an eerie-wonder: 1365
fire-light on the lake; there lives none so wise
of the sons of men who can sound its depths.
Though the heath-stepper, harried by hounds,
the strong-horned hart, seeks the holt-wood
put to flight from afar, he would sooner forfeit his life,
his breath on the bank, before he will
plunge in his head; it is not a pleasant place.
Thence a wave-storm, when the wind stirs,
spirals upwards, dark to the skies,
dire tempest, until the air grows dense,
the heavens weep.  Now help depends
once again on you alone; you know not yet the region,
fearful place, where you might find
that most sinning creature: seek her if you dare.
I shall repay you for this revenge with riches,
with ancient treasures and twisted gold
as I did before, if you come back alive.”

My Response to the Government’s Consultation on Divorce Reform

  1. Do you agree with the proposal to retain irretrievable breakdown as the sole ground for divorce? You may wish to give reasons in the text box.

No.  The Government’s single proposal for divorce reform is confused and inconsistent.  Removing the requirement to prove either separation or fault to the court’s satisfaction means that there can be no objective assessment either that the marriage has truly broken down or that the breakdown is indeed irretrievable.  Retaining this ground when it cannot be verified makes no sense at all, it is simply a sop thrown to the supporters of marriage.

  1. In principle, do you agree with the proposal to replace the five facts with a notification process? You may wish to give reasons in the text box.

No.  The Government’s sole proposal is dishonest.  This is not, as it is presented, the removal of fault from the process: there is already provision in the existing legislation for no-fault divorce.  This is instead a proposal to introduce unilateral divorce under the guise of no-fault.  Instead of removing fault, the proposal removes evidence of irretrievable breakdown, meaning that the petitioner has no need to prove the marriage has broken down irretrievably; the respondent cannot challenge the petition and the court cannot be satisfied either that the marriage has broken down or that it is irretrievable.

The government’s justification, that divorce is ‘costly and emotionally draining’, is not a good legal argument.  The consultation presents a respondent’s right to contest as abusive, and presents marriage along familiar feminist lines as oppressive and coercive.  It fails to imagine that there will also be cases where a petitioner may be abusive or coercive.  Feminists like Liz Trinder view divorce as a positive good and a way by which a woman may leave an oppressive marriage, but not all marriages and not all divorces fit this stereotype.

The proposal simplifies the divorce process, making it easier to leave a marriage, as some have claimed, than leaving a mobile phone contract.  That will inevitably have the effect of cheapening marriage, which is effectively defined by divorce law.  Existing marriages will also be redefined, without the consent of the parties.  The consultation is not honest about this.  Marriage vows will also be cheapened, together with the intentions of those who make them.

Removing fault from the process removes any sense that adultery or other breach of the marriage vows is wrong or the potential cause of marriage breakdown, and denies the wronged party any legal remedy.

Making divorce easier is likely to increase divorce rates, and do nothing to strengthen marriage or commitment.

  1. Do you consider that provision should be made for notice to be given jointly by both parties to the marriage as well as for notice to be given by only one party? You may wish to give reasons in the text box.

Yes.  For a very long time, the law refused divorce by consent on the grounds that marriage was a contract in which others had an interest: the children, other parties and society itself.  Divorce reform has eroded this, allowing divorce to become an individualistic act, without thought or responsibility for others, and least of all for society.  The proposed reform would complete this process, so joint notification would be the very least concession.  Otherwise, this reform would bring about unilateral divorce whereby a petitioner could leave a respondent with no evidence adduced that the divorce was justified, and in cases where one party did not want the divorce or where one exercised power over the other, the proposal would risk severe miscarriages of justice.  This reform could be most dangerous to vulnerable parties in a marriage.

  1. We have set out reasons why the Government thinks it helpful to retain the two-stage decree process (decree nisi and decree absolute). Do you agree?

No.  The two-stage process was an 1861 innovation for which in an age of information technology there can be little continuing justification, provided the appropriate checks are made at the petition stage.  Other jurisdictions have no such requirement.

  1. What minimum period do you think would be most appropriate to reduce family conflict, and how should it be measured? Please give your reasons in the text box.

The period between nisi and absolute was reduced from 6 months to 6 weeks and a day in 1996 and I can see no justification for increasing it back to 6 months.  Arbitrarily delaying the divorce once the decision has been made can only create resentment and more conflict.  The wheels of justice already grind very slowly and to introduce further delay serves no useful purpose.

How should it be measured?  By clocks?  I don’t understand the question.

  1. Are there any circumstances in which the minimum timeframe should be reduced or even extended? If so, please explain in the text box.

If the petitioner is not required to prove irretrievable breakdown and  the respondent cannot contest the divorce, it is difficult to imagine any circumstances where delaying the process might prove necessary.

  1. Do you think that the minimum period on nullity cases should reflect the reformed minimum period in divorce and dissolution cases?

No.  Nullity is a separate matter and there is no reason why the timescale should be the same, and again, no reason why an arbitrary delay should be introduced to delay the legal process further.

  1. Do you agree with the proposal to remove the ability to contest as a general rule? You may wish to give reasons in the text box.

Absolutely not.  It is totalitarian to deny a respondent any right to contest a divorce.  In a reformed process where a petitioner is not required to prove that the marriage has broken down irretrievably and the court does not need to be satisfied, a respondent should as a minimum be able to refute the petition.  The consultation states that such a measure serves no practical purpose, but this is clearly not the case in the – albeit very unusual – case of Owens v Owens.  To deny respondents access to justice merely because demand is low is not justice.  Although the option to contest is rarely used, its existence and the current requirement to satisfy the court oblige petitioners to ensure that they have valid reasons for the divorce.

  1. Are there are any exceptional circumstances in which a respondent should be able to contest the divorce? Please explain these exceptional circumstances in the text box.

Yes.  But they are for the respondent to determine, not the administrative process, and the court will then decide whether the divorce is justified.

  1. Do you agree that the bar on petitioning for divorce in the first year of the marriage should remain in place? You may wish to give reasons in the text box.

Yes.  There is no reason why this should be affected by the other reforms proposed.  To remove even this requirement would further trivialise marriage.

  1. Do you have any comment on the proposal to retain these or any other requirements?

Only as already provided.

  1. We invite further data and information to help update our initial impact assessment and equalities impact assessment following the consultation.

The consultation is limited in its outlook and in its examination of evidence.  In presenting only one option for reform, it pushes the reader towards the government’s preferred solution.  While most people would accept that some species of reform is necessary, this is coercive and manipulative.  The evidence presented is carefully selected to support the government’s position.

The consultation places undue reliance on the report by Liz Trinder who is an active campaigner for no-fault divorce and not an open-minded witness.  Her report is one valuable piece of evidence, but should not be regarded as definitive or irrefutable.

The consultation invites comparison with other jurisdictions in which it claims similar measures ‘work well’, but ‘working well’ is not defined, and other jurisdictions are not necessarily comparable.  Conversely, it rejects adopting the Scots measure of reducing the 2-year and 5-year separation times to 1 and 2 years on the grounds that the jurisdictions are dissimilar.

Campaigners for no-fault divorce claim that there are no arguments for retaining fault, but this is untrue, whatever one may think of those arguments.  The consultation continues this deception.

The consultation also takes a very narrow view of some matters, assuming, for example, that a respondent who contests a divorce is likely to be manipulative and coercive, but not prepared to consider that a petitioner for divorce may also be manipulative and coercive: a divorce process which cannot be challenged is far more likely to be abused than one that can.

The consultation is based on the premise that it is the method of divorce which creates conflict rather than the divorce itself, or the factors leading up to the divorce.  There is no evidence for this.

It also assumes, falsely, that the harm caused to children by divorce is the result of conflict between their parents rather than by any other factor.  Again, this is false, as conflict is a factor in only a minority of divorces, while a much larger proportion of children are adversely affected by divorce.

Given the negative impact of divorce on children, on the parties and on society, a responsible government would seek to encourage marriage and discourage divorce.  To do the reverse is negligent and socially destructive.  Pressure for marriage reform is driven by lawyers – and especially by Resolution, by the judiciary and by feminist academics: all people who potentially benefit from high divorce rates, which are currently falling, or who are dismissive of the value that marriage brings to children, spouses and society.  There is much less support for reform – particularly of the nature proposed – from the general public, or from the married.

The End of Times

There was once a great and glorious Guild.  Its origins were so ancient that they were lost in the mists of antiquity and its branches had spread into every country of the world.  It was highly venerated and its very existence was deemed essential for the survival of society itself: almost everyone wanted to join and, provided they abided by its rules and traditions, they could.  In return, the Guild offered them protection and security.

Of course, there were always some who chose not to join, but they were few and had limited ability to influence the status quo.

There were also some who chose to leave the Guild, but again, their numbers were small and their leaving had minimal impact.

Then, one year, a great Calamity befell; it continued for six years and many died.  Thereafter, ten times as many chose to leave the Guild as had before the Calamity; more people decided not to join at all, they believed that if they followed rules similar to the Guild’s, they would still be entitled to its protection and security.  They were wrong, however, and when they discovered this, they could not accept that the fault was theirs, so they would target their disappointment and resentment at the Guild.

Others began to teach that the Guild was corrupt and abusive: that it bullied and exploited its members; they campaigned for the Guild to be shut down, and they managed to persuade the Regime, which was young and inexperienced by comparison with the Guild, to pay the costs of their campaign.

Some, who rejected the Guild’s rules and traditions, nevertheless wished to join; again, they demanded the protection and security without having to abide by the rules and traditions which underpinned it.  The Guild refused, so they went to the House of Decrees, which agreed that it was unfair to exclude them.  The Regime sought to compromise and set up a rival guild.  They also began to dismantle some of the Guild’s rules.

But it wasn’t sufficient, limited numbers signed up for the rival guild: they only wanted to be members of the original so, eventually, the Regime capitulated to the House of Decrees, marketing their defeat as a great modernisation.  Many members of the Guild believed that the Regime had no authority to do this: the Guild belonged to the people, not to the Regime.

By now, few of the Guild’s rules and traditions, which had once been so important to people, survived.  What remained seemed anachronistic and irrelevant; it was presented as the preserve of the wealthy and the upper classes, ordinary people left or stayed away.

Some now demanded to join the rival guild, even though they didn’t qualify.  They said the Guild no longer catered for their beliefs.  People began to demand that the Regime should set up extra guilds just for them.  Rather than comply with the rules of the existing guilds, they wanted the rules to be tailored to their individual requirements.  It became a free-for-all, with the original purpose of the Guild long forgotten, and its protections diminished or lost.

Eventually, the Guild closed down; its existing members clung together for a while before dispersing, but no new members could join.  The other guilds, lacking a model, fizzled out.  The protections and security, once so highly valued, were gone, people were forced to survive hand-to-mouth, competing with those who had once been their neighbours.  The structures which had once defined their society were gone.  An era of darkness descended upon them.

UN suppresses dissent against male genital mutilation

In 2006, the United Nations General Assembly published a report by Paulo Sérgio Pineiro into Violence against Children.[1]  Pineiro’s report conformed to UN policy and emphasised violence against women and girls and specifically female genital mutilation.  The report was one of two which followed a conference held in Geneva on Protecting Children from Harmful Practices.  The following year the UN established the International NGO Council on Violence Against Children to ensure that member states participated in UN policy.

In 2012, the Council published a hard-hitting report on violence against children based on tradition, culture, religion and superstition, Violating Children’s Rights.[2]  Under the heading of Male Circumcision, the report observed,

Male circumcision has been largely neglected in mainstream debates on harmful practices because of its strong religious connections, particularly with Judaism and Islam, and its general acceptance in many societies.  In some areas, it is also a cultural practice, for example in parts of South Africa and in Zambia among some ethnic groups, where it is associated with rituals initiating boys to adulthood.

The report observed that,

Male circumcision can result in numerous physical, psychological, and sexual health problems during the surgery, afterwards, and throughout adulthood, including haemorrhage, panic attacks, erectile dysfunction, infection (in severe forms leading to partial or complete loss of the penis), urinary infections, necrosis, permanent injury or loss of the glans, excessive penile skin loss, external deformity, and in some cases even death.

After a brief consideration of prevalence, the report unusually, perhaps even uniquely, identified that the circumcision of boys constitutes―

a gross violation of their rights, including the right to physical integrity, to freedom of thought and religion and to protection from physical and mental violence.  When extreme complications arise, it may violate the right to life.

The report commented on some of the campaign efforts against MGM before concluding that any potential health benefit “does not over-ride a child’s right to give informed consent to the practice”.

Readers will be aware that the strength of the language with which this condemnation of male genital mutilation is expressed is unparalleled in official publications from the UN or any other source.

 

Recently, the US-based anti-MGM campaigner Tim Hammond identified that the link to the report had been removed from the UN’s violence against children website.  A search for the report turns up a page which references the two reports which followed the Geneva conference; the other report is linked to, the Violating Children’s Rights report is not.  The report does remain on the Child Rights International Network website (crin.org) and on Hammond’s own Circumcision Harm site (circumcisionharm.org).

 

In 2016, the NGO Council had been disbanded and its work was taken over by the Global Partnership to End Violence Against Children.  Publications from this new group reveal a commitment only to ending the genital mutilation of girls and to the VAWG agenda generally.  The UN is firmly wedded to the idea of FGM as a gender crime against the autonomy of women and girls and driven by male violence and patriarchal oppression.  The existence of MGM is an awkward embarrassment which needs to be suppressed.  In 2005, the UN stated,[3]

In the case of girls and women, the phenomenon is a manifestation of deep-rooted gender inequality that assigns them an inferior position in society and has profound physical and social consequences.  This is not the case for male circumcision, which may help to prevent the transmission of HIV/AIDS.

In both the UK and the US, it has been claimed by campaigners that MGM is already prohibited by existing legislation.  In the UK this is the Offences Against the Person Act 1861 and the Children and Young Persons Act 1933.  Case law, however, routinely supposes MGM to be lawful and not to fall within the ambit of this legislation.  In Re B and G (Children) (No2) [2015] EWFC 3, for example, in which judgment was given by the recently-retired President of the Family Division, Lord Justice Munby, the court concluded that, unlike FGM, MGM did not cross the threshold of “significant harm” because of the health benefits that are claimed for it.  As I have argued in an earlier blog post, these claims are spurious (the circumcised men in the single supportive study were given condoms; the uncircumcised men were not).

This judicial acceptance creates the very dangerous situation that to outlaw MGM would require specific legislation, analogous to the Prohibition of Female Circumcision Act 1985 and Female Genital Mutilation Act 2003.  In the current climate, no government would have the stomach for such legislation for fear of offending Jewish and Islamic sensibilities.  An attempt to outlaw MGM in Sweden was condemned by the World Jewish Congress as, “the first legal restriction on Jewish religious practice in Europe since the Nazi era”.[4]  A bill to ban male circumcision in Iceland provoked predictable claims of an assault on religious rights and allegations of anti-Semitism and Islamophobia.[5]

The NGO Council’s conclusion remains ever-more relevant: an adult’s right to practise his or her religion does not give that adult the right to impose those beliefs on his or her child through irreversible bodily mutilation.  Hiding barbaric practices based on tradition and superstition behind false claims of health benefits is contemptible and does not over-rule a child’s right to respect for his bodily integrity.  The UN’s approach to ending violence against children should be based on objectivity, and not be driven by the feminist agenda.

[1] Pinheiro, P. S. (2006). Report of the independent expert for the United Nations study on violence against children. United Nations General Assembly.

[2] The International NGO Council on Violence against Children. (2012). Violating Children’s Rights: Harmful practices based on tradition, culture, religion or superstition. New York: Automation Graphics.

[3] Lewnes, A. (2005). Changing a Harmful Social Convention: Female Genital Mutilation/Cutting. Florence: UNICEF Innocenti Research Centre.

[4] Reuters. (2001, June 07). Jews Protest Swedish Circumcision Decision. Reuters.

[5] Sherwood, H. (2018, February 18). Iceland law to outlaw male circumcision sparks row over religious freedom. The Guardian.

Outragous £220K pay of feminist domestic violence charity CEO Sandra Horley would fund leading men’s charity for FIVE YEARS

A superb and shocking post from the wonderful HEqual. Sandra Horley’s pay is proportionate to the scale of the lie she has to sustain. Never forget that it was Horley who admitted in 1992,
“If we put across this idea that the abuse of men is as great as the abuse of women, then it could seriously affect our funding.”

hequal

Last week saw the news from London that there isn’t a single domestic violence shelter place for male victims in the entire city. That’s a city of over eight million people, with vast wealth and huge tax revenues and massive government spending, completely unwilling to house a single one of its tens of thousands of male victims of domestic violence (nor their children). Meanwhile, that very same city hosts the headquarters of feminist domestic violence charity “Refuge”, situated in opulent headquarters right in the centre of London, in St Katharine Docks. Their offices have views of Tower Bridge where rents start at £340K per annum.

Sitting in those plush offices one will find Refuge’s CEO, Sandra Horley. Like any good gender feminist, Horley has a history of using false, massively outdated or cherry-picked statistics about domestic violence to give a misleading picture of the proportion of male and female…

View original post 1,122 more words

New Edition: The Family Law A to Z

Dear Friends,

Finally, after a tremendous amount of reading, research, discussion and writing, Ruth and I have completed revision of our Family Law A to Z.

The_Family_Law_A_to__Cover_for_Kindle

Every entry has been revised and, where necessary, updated; new changes to legislation, practice and guidance have been incorporated and new cases have been referenced.  We have also added a few entirely new entries.

We warmly recommend the book to all litigants, whether represented or not, but especially to those who are forced to represent themselves.

We recommend it to lay advisors and McKenzie Friends and to anyone who is in any regard supporting a friend or relation who is pursuing a case in the Family Courts.

It will also represent an invaluable reference work for support organisations of all kinds and to anyone who runs a support forum or Facebook page.

We even recommend the work to lawyers who may sometimes need to remind themselves what Imerman Documents are or what a Grepe v Loam Order does.

Finally, we wholeheartedly recommend it to students of the law beginning their university courses this autumn.  It will be a worthy addition to your bookcases.

The book should be available next week from Amazon.

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Unresolved: What Does Resolution Really Want?

The Legislation

In English and Welsh law, established in the Divorce Reform Act 1969 and repeated in the Matrimonial Proceedings Act 1973, there is only one ground for divorce:

The sole ground upon which a petition for divorce may be presented to the court by either party to a marriage shall be that the marriage has broken down irretrievably.

This means that a petitioner for divorce must satisfy the court both that the marriage has broken down and that it is irretrievable.

The petitioner must prove this using one of five “facts”.

Three of these are fault-based, that is, the petitioner must establish that the breakdown of the marriage was due to fault on the part of the respondent.  These are: desertion, adultery and what has come to be called “unreasonable behaviour”.  This shorthand has led to considerable confusion; the legislation contains neither word, what it actually says is that to prove irretrievable breakdown the petitioner must satisfy the court―

That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.

Thus, it is not the respondent’s behaviour that must be shown to be unreasonable, but the expectation that the petitioner should continue to live with them.  The law does not even require the petitioner to show that it was the respondent’s behaviour which led to the marriage breakdown.  In Bannister v Bannister (1980) 10 Fam Law 240, Ormrod LJ observed,

The learned judge, I am afraid, fell into the linguistic trap which is waiting for all of us when we speak of ‘unreasonable behaviour’ in relation to section 1(2)(b) cases.  The basis of this subsection is not ‘unreasonable behaviour’ but behaving in such a way that the petitioner ‘cannot reasonably be expected to live with the respondent’, a significantly different concept.  It is difficult to find an alternative shorthand expression for this subsection, so we all talk, inaccurately, of ‘unreasonable behaviour’.

There are, however, contradictions in this formulation: a court will not grant a divorce where a marriage has clearly broken down irretrievably if the petitioner is unable to establish sufficient fault, and where the petitioner can establish fault, the court will grant a divorce even if the marriage can be salvaged.

The remaining two facts are not fault based: separation for two years if the parties consent and separation for five years if they do not.  Thus, there is already provision in the law for “no-fault divorce”.

Attempts at Reform

Prior to 1969, the grounds for divorce had been adultery, cruelty, desertion and incurable insanity.  Divorce was relatively uncommon, though increasing, with the result that numerous couples were living in adulterous relationships and raising illegitimate children.

Calls for reform of divorce law had escalated since the failure of the Matrimonial Causes Act 1937 to enable separated couples to divorce.  As the Denning Report noted in 1947, there was no provision in law for the divorce of consenting parties.  Denning observed,

Marriage is not a contract which the parties can mutually agree to rescind.  It confers a status in which others beside the parties are interested… Society itself, for the sake of the children, cannot allow the unity of family life to be broken by the consent of the parties.  Hence in this country the fundamental rule that divorce by mutual consent is not allowed.

In a Private Member’s Bill in 1951, Eirene White MP proposed “a new principle, in that it looks to the breakdown of the marriage as the ground for divorce”, rather than fault committed by the other party.  Divorce, based upon this principle of “irretrievable breakdown” would be granted if the parties had been separated for seven years.

The Bill went no further, but between 1951 and 1956 a Royal Commission considered marriage and divorce; there had been only two previous Royal Commissions on marriage, in 1909 and 1350.  Nine of the Commission’s eighteen members recommended divorce based on irretrievable breakdown; opposition was based on the objection that this would constitute divorce by consent, an intolerable concept.

In 1962, the Labour MP for Pontypool, Leo Abse, launched a Private Member’s Bill based on the principle that there was no point in recrimination in a marriage which had irretrievably broken down.

Abse, a flamboyant Welsh lawyer who introduced more private member’s bills than any other MP in the 20th century, was best known for pushing through the legislation to decriminalise male homosexual acts.  He sought to minimise hostility by making divorce easier, and by removing the necessity for both parties to agree, which obliged many to live in illegitimate unions.  He believed this would reduce illegitimacy and strengthen marriage and the family,

I am now pleading for those who find themselves joined in a dead marriage contracted years ago, who are unable to regularise their relationship or legitimise their children.  When they are told that the existing law is in existence because of the need to maintain it out of respect for the marriage contract, it is inevitable that they regard such a comment as cruel sententiousness.

Nevertheless, what he proposed would mean a spouse could be divorced without his having committed any matrimonial offence and against his will, a move which represented a revolutionary change in divorce law and would have consequences Abse never envisioned.  It also removed from the process any sense that divorce was socially irresponsible.

Two reports commissioned in 1966 reflected the continuing dispute between social accountability and individual emancipation, reaching contrary conclusions: the Archbishop of Canterbury’s Group recommended an inquest into each divorce, examining why the marriage had broken down; the newly formed Law Commission, a left-wing quango set up by Harold Wilson the year before, with strong links to the legal and social-work professions, wished to remove the notion of “fault”‘ entirely, on the ground that it increased “bitterness, distress and humiliation”.

The Divorce Reform Act 1969 which followed was a compromise between these two positions.  It did nothing to ‘buttress’ marriage, as intended by Parliament, but neither did it fully realise Abse’s ideal of removing hostility and rancour.  Petitions more than doubled: from 51,000 divorces in 1969 to 119,000 in 1972, affecting 131,000 children.

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Owens v Owens: the First Hearing

In May 2015, Tini Owens sought a divorce from her husband, Hugh, to whom she had been married for 38 years.  Their two children had long since left home and she had had an affair a couple of years before.  Tini and Hugh were living separately, but had not been separated for the two years requisite for a consent-based divorce.

A petitioner cannot use her own adultery as the basis of a divorce, so Tini’s only option was to use “unreasonable behaviour”.

The usual advice is to cite five or six things which have made a spouse impossible to live with.  These are summed up in a few short paragraphs in the petition, including the first and most recent events, the most serious, and all dates, if they are known.  Tini provided five examples.

Hugh returned his acknowledgement of service, expressing an intention to defend the divorce.  This is unusual: in 2016 only 2.28% of respondents expressed an intention to defend and only 0.67% filed an Answer as the first stage.  Only 17 cases reached court.

Tini was allowed to amend her petition, elaborating upon her description of Hugh’s mood swings and unpleasant disparagement into 27 separate allegations.

In court, Tini’s counsel, Philip Marshall QC, explained,

I can say straight away I do not propose, unless your Honour wishes me to do so, to go through each and every one of the 27 allegations.

The judge, Robin Tolson QC, replied,

I was going to ask if there is any measure of agreement as to the approach we should adopt to that? … I am asking about the forensic approach to 27 separate allegations, some older than others.

And Philip Marshall responded,

I simply propose to focus upon one or two of them, or three or four of them.  My client in her statement has confirmed the veracity of her petition and I will ask her to confirm that, and that will stand as her case to the extent it is supplemented in her witness statement which your Honour will, of course, have in due course.

Marshall focused on four of the allegations, all involving incidents which took place in public spaces or in front of others.  It was still a slow process, obliging Tolson to say,

Well, gentlemen, shall we get on, we have an awful lot of allegations to cover at some point in the next hour and a quarter.

In his judgment, Tolson recorded,

The agreed approach at the trial was not to investigate each and every allegation, but through examination and cross-examination of the history of the marriage and selected allegations to give the overall flavour or complexion of the case and of how personal perspective might have altered reality in terms of the pleaded matters.

The court of Appeal considered this “an unexceptional approach”.

The four incidents do not amount to much; they are unremarkable for a 38-year-old marriage which has lost its sparkle, though they need to be seen in context and as they might be perceived by Tini Owens, described by the Court as a particularly sensitive woman.  Mr Owens had said,

I think she had an ulterior motive for collecting all these, what, to my mind was a collection of molehills which she felt suited her purpose to build up into mountains because she had aspirations outside of our marriage.

Tolson accepted that the marriage had broken down, finding that the wife “cannot go on living with the husband” and continuing “he claims to believe that she can, indeed that she will, but in this in my judgment he is deluding himself”.  But Mrs Owens had not proved that Mr Owens had behaved in such a way that she could not reasonably be expected to live with him.

Tolson directed himself,

In the present context, the law permits me to grant a decree of divorce only if I can find on a balance of probabilities that “the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent”.  Only then could I hold the marriage to have broken down irretrievably (if it has).  In determining the question whether this Respondent has behaved in such a way I apply an objective test – what would the hypothetical reasonable observer make of the allegations – but with subjective elements. I have to take into account the individual circumstances of the spouses and the marriage: “would any right-thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him taking into account the whole of the circumstances and the characters and personalities of the parties?”

He continued,

In reality, I find that the allegations of alleged unreasonable behaviour in this petition – all of them – are at best flimsy.  I would not have found unreasonable behaviour on the wife’s pleaded case.  As it is, having heard both parties give evidence, I am satisfied that the wife has exaggerated the context and seriousness of the allegations to a significant extent.  They are all at most minor altercations of a kind to be expected in a marriage.  Some are not even that.

He concluded,

I have not found this a difficult case to determine.  I find no behaviour such that the wife cannot reasonably be expected to live with the husband.  The fact that she does not live with the husband has other causes.  The petition will be dismissed.

Merely because she was unhappy in the marriage was not a justification for the court to grant her a divorce.

Divorce was introduced as a means by which a wronged party could seek legal remedy, usually for adultery.  Thus, the law requires that one party must find fault in the other: that they have defaulted in some way.  There is no provision for ending a marriage like that of the Owenses, where the parties are equally to blame.

The Appeal to the Court of Appeal

Mrs Owens now had a choice: she could have submitted a new petition; for example, in Stevens v Stevens [1979] 1 WLR 885, a wife’s petition was dismissed.  The marriage had broken down, but due to her own behaviour and she had not established a case against her husband.  She presented a second petition, based on behaviour that had occurred since the first hearing, and the divorce was granted.

Instead, Mrs Owens appealed the judgment to the Court of Appeal where it was heard by Lord Justice Munby, the President, and Lady Justice Hallett.

The basis of her appeal was that Tolson’s process had been flawed: he had not made core findings of fact, failed to assess properly her subjective characteristics, failed to assess the cumulative effect of her husband’s behaviour and failed to apply the law correctly to the facts.

She also argued that her Article 8 (respect for family life) and Article 12 (right to marry) Convention rights were being contravened.

The Court of Appeal considered precedents to determine the correct approach the lower court should have taken, none was recent.  Munby quoted Cairns LJ who had said in O’Neill v O’Neill [1975] 1 WLR 1118, 1121,

The right test is, in my opinion, accurately stated in Rayden on Divorce, 12th ed (1974), Vol.1, p 216:

The words ‘reasonably be expected’ prima facie suggest an objective test. Nevertheless, in considering what is reasonable, the Court (in accordance with its duty to inquire, so far as it reasonably can, into the facts alleged) will have regard to the history of the marriage and to the individual spouses before it, and from this point of view will have regard to this petitioner and this respondent in assessing what is reasonable.

Munby continued to quote from Rayden,

In all these cases the totality of the evidence of the matrimonial history must be considered, and the conclusion will depend on whether the cumulative conduct was sufficiently serious to say that from a reasonable person’s point of after a consideration of any excuse or explanation which this respondent might have in the circumstances, the conduct is such that this petitioner ought not to be called upon to endure it.

Munby cited, inter alia, Cumming-Bruce LJ who said in Balraj v Balraj (1980) 11 Fam Law 110,

…the court has to decide the single question whether the husband (for example) has so behaved that it is unreasonable to expect the wife to live with him.  In order to decide that, it is necessary to make findings of fact of what the husband actually did and then findings of fact upon the impact of his conduct on that particular lady.  As has been said again and again between a particular husband and a particular lady whose conduct and suffering are under scrutiny, there is of course a subjective element in the totality of the facts that are relevant to the solution but, when that subjective element has been evaluated, at the end of the day the question falls to be determined on an objective test.

Munby found that this was the law Tolson should have followed and that he had indeed followed it.  Matters had to be viewed from the perspective of 2017; the objective test had to be applied by reference to the standards of “the man or woman on the Boris bus with their Oyster Card in 2017” and not of “the man on the horse-drawn omnibus in Victorian times” or of “the man or woman on the Routemaster clutching their paper bus ticket” in 1969.

Munby found that Tolson had made core findings of fact, had assessed properly Mrs Owen’s subjective characteristics, had assessed the cumulative effect of her husband’s behaviour and had applied the law correctly to the facts.

Tolson had not been wrong to have examined only four of the 27 allegations made: the court was required to have regard to the overriding objective which requires the court to

  1. deal with every case expeditiously and fairly;
  2. deal with a case in ways which are proportionate to the nature, importance and complexity of the issues;
  3. save unnecessary expense; and
  4. allot to each case an appropriate share of the Court’s resources, while taking account of the need to allot resources to other cases.

Munby concluded that the Court of Appeal had no grounds to interfere with Judge Tolson’s decision and the human rights arguments were dismissed.  Although the Convention provides a right to marry, there is no corresponding right to divorce.

The Appeal to the Supreme Court

Again, Mrs Owens could have submitted a new petition, but instead she appealed further to the Supreme Court.  Like Munby, Lord Wilson was unable to find a precedent more recent than Balraj in 1988.

Resolution, the solicitors’ association, intervened in the case.  It contended that through the “unreasonable behaviour” subsection, the state “actively precipitates dispute”.  Resolution argued that the lower courts had been misinterpreting the subsection and that the focus should be on the petitioner’s reaction to the respondent’s behaviour and not on the behaviour itself.  The Supreme Court rejected this interpretation, “With respect to Resolution, its suggested interpretation of the subsection is incorrect”: “it is… impossible to avoid focus on the respondent’s behaviour, albeit assessed in the light of its effect on the petitioner”.

Mrs Owens had sought, unsuccessfully, to use this interpretation in the Court of Appeal, but wisely decided not to use it in the Supreme Court.

The Court admitted, “There is no denying that the appeal of Mrs Owens generates uneasy feelings”, but concluded,

The appeal of Mrs Owens must be dismissed.  She must remain married to Mr Owens for the time being.  Were she to continue to live apart from Mr Owens until 2020, he would surely have no defence to a petition then brought under section 1(2)(e) of the 1973 Act on the basis that they had lived apart for a continuous period of five years.

Lady Hale expressed the view that the correct disposal would have been to have allowed the appeal and to have sent the case back for a rehearing, but that would have been unacceptable both to the parties and to counsel, and it is unlikely it would have been heard before February 2020 when a simpler hearing can be conducted on the basis of five years’ separation.

The Media Response

The media response to the case was extraordinary and reflected the confusion generated by the “unreasonable behaviour” shorthand.

In the Guardian, for example, Suzanne Moore, who admits, contrary to all the evidence, to have no time for marriage which she thinks is “essentially about property and patriarchy” – tried to make out that Tini Owens was a “captive”, the vulnerable victim of an oppressive and paternalistic husband.  In reality, of course, an equally weak petition presented by a husband would have been just as likely to have failed.  She resurrected the tired old feminist myth that the “rule of thumb” derives from a husband’s right to beat his wife with a stick no thicker than his thumb, and claimed that the 1996 Family Law Act, which would have introduced a form of no-fault divorce, was shelved because the Blair Government was “terrified of the fundamentalists in Middle England and that great arbiter of morality, the Daily Mail”.  In reality, it became encumbered by amendments to make divorce dependent on financial and child resolution, as in Scotland, so that a “simple and elegant legislative scheme became exceedingly complex”.

The Campaign for “No-Fault”

In his Court of Appeal judgment, Munby had gone on to describe the long history of campaigning for the introduction of “no-fault divorce”.  This commenced with a former President, Sir Gorell Barnes, fulminating in 1906 (Dodd v Dodd [1906] P 189, 207),

That the present state of the English law of divorce and separation is not satisfactory can hardly be doubted.  The law is full of inconsistencies, anomalies, and inequalities amounting almost to absurdities; and it does not produce desirable results in certain important respects.

Munby observed that the law as it stands does already provide for divorce by consent,

The simple fact is that we have, and have for many years had, divorce by consent, not merely in accordance with section 1(2)(d) of the 1969 Act [two years separation with consent] but, for those unwilling or unable to wait for two years, by means of a consensual, collusive, manipulation of section 1(2)(b) [unreasonable behaviour].  It is ironic that collusion, which until the doctrine was abolished by section 9 of the 1969 Act was a bar to a decree, is now the foundation of countless petitions and decrees.

The reality is that if a couple wants a divorce they will find a way; a Royal Commission into marriage was established in 1909 and the King’s Proctor complained that 75% of divorces were by consent, using what was then referred to as “misconduct”.

This is a particularly dishonest situation, indeed, Munby observed in his judgment,

The simple fact, to speak plainly, is that in this respect the law which the judges have to apply and the procedures which they have to follow are based on hypocrisy and lack of intellectual honesty.

“Unreasonable behaviour” provides a normally simple and straightforward route to divorce, provided the parties collude and agree that one will make allegations designed to satisfy the law and not to reflect the truth.  This is the most popular way of obtaining a divorce, representing 45% of petitions in 2016.

The case of the campaigners for reform is that this no longer is acceptable and generates hostility.

In Scotland, in 2006, a solution was adopted by reducing the two-year wait to one and the five-year wait where there is no consent to two years.  The result is that 68% of petitions in 2015/16 relied on two-years’ separation without consent and 26% used one-year’s separation with consent.  This isn’t because Scots are inherently less argumentative than the English and Welsh, it’s just the easiest way to get a divorce.

Professor Liz Trinder, an enthusiastic advocate for reform, conducted research into fault-based divorce.  She rejected the status quo as unsustainable and a stricter enforcement of the law as unachievable.  She rejected the Scottish solution, too, as incompatible with the English/Welsh culture which favoured fault and opted for Resolution’s “notification” scheme in which one or both parties confirm their intention to divorce.  The report examines only its own internal evidence and relies on a survey of a poorly-informed general public.  It concluded,

The decision to divorce should be taken by the parties themselves.  In the twenty-first century, the state cannot, and should not, seek to decide whether someone’s marriage has broken down.  That should be a private family matter, properly determined by the parties, not the state.

There was no recognition, as Munby had recognised, that removing the decision entirely from the state would be an “extremely radical departure” from existing law and a redefining of the relationship between citizen and state.  Nor was there any perception of the very different divorcing behaviours of wives and husbands, or the likely unequal impact of reform.  Trinder’s was a militant agenda.

Resolution advocate a “no-fault” divorce process, that is, a process which does not require the petitioner to make allegations of fault against the respondent.  This is misleading, since there is already a process for no-fault divorce, as explained above.

What Resolution really want is divorce-by-consent, that is, the option for a couple to agree between themselves that they want a divorce and a process which enables them to do so without recrimination.  Again, this is misleading, since the existing process allows for this, if the couple have been separated for two years.

What Resolution propose is—

a new divorce procedure, where one or both partners can give notice that the marriage has broken down irretrievably.  The divorce can then proceed and, after a period of six months, if either or both partners still think they are making the right decision, the divorce is finalised.

This would have the advantage of reducing the two-year wait to six months.

Now, some aspects of Resolution’s campaign are concerning.  Their intervention in the Supreme Court appeal on the basis of a misinterpretation of the law is extraordinary.  We might also speculate that their guidance of Mrs Owens away from a new petition which might well have been successful into two highly publicised appeals was a deliberate attempt to gain as much publicity for their campaign as possible and to push Parliament into legislative action.  Their presentation of divorce by consent – which has always been anathema to legislators – as no-fault divorce also strikes me as deliberately dishonest.

The vigour of their campaign, and the fact that senior family judges such as Sir James Munby and Baroness Hale have repeatedly made speeches and added codas to their judgments advocating for no-fault divorce, apparently in opposition to their duty to uphold the law, fills one with misgiving.

The real issue with their proposal, however, is what happens when there is no consent.  After all, no-fault divorce by consent would not have aided Mrs Owens because her husband would not have consented.

The answer, though they do not elaborate on it, seems to be that under the new proposal, even if only one party thinks that the marriage has broken down irretrievably, a court will have to grant a divorce after the statutory six months.

That isn’t no-fault divorce and it certainly isn’t divorce by consent, it is unilateral divorce, and that’s an entirely different proposition.

Professor Stephen Baskerville, for example, calls this—

a unique and unprecedented legal anomaly in which one spouse could end a marriage with neither agreement nor fault by the other and break the marriage contract without liability for the costs.

Robert Whelan, former deputy director of independent think-tank Civitas, said that the—

essential element of contract law is abrogated.

Resolution’s members will no longer need trouble themselves about justice, about which party is responsible for the breakdown of a marriage, since both parties can be held responsible.  The laudable attempt to lessen the stress of divorce takes divorce as a remedy to breach or abuse away from the injured and legally innocent party and hands it instead to their abuser: what was intended as a measure to protect the integrity of marriage is made a route out of a marriage with which one party has become bored.

Far from eliminating the concept of fault, unilateral divorce imposes fault on the innocent party, who can be summoned to court despite having done nothing criminal and under a presumption of guilt for which there can be no defence.

Sir Edward Leigh MP has condemned no-fault divorce, claiming that evidence from countries such as the United States and Sweden shows that no-fault divorce has a—

demonstrable negative impact on income and educational achievement, with increases in anti-social behaviour.  Women become poorer, single mothers have to work longer hours, and children become more disadvantaged.

He warns,

It would be perverse to suggest it’s worth risking devastated lives for the rest of society just to tidy up the legal affairs of those couples who believe their marriage has irretrievably broken down.

Family lawyer Joe Robertson, Vice President of the Hampshire Law Society says unilateral divorce—

could inadvertently become a tool of emotional abuse and undermine stable families… There would be no opportunity for the respondent to be heard and no proper period for reflection.  Coupled with the rapid advent of online courts… divorce could be the click of a mouse away at the whim of one party in the heat of an argument.  A marriage created by consent but dissolved unilaterally would cease to be a legal union at all.  It would be the ultimate symbol of a consumer-led throwaway society and vulnerable women and children will be most at risk if things go wrong.

The Coalition for Marriage fear that unilateral divorce would “reduce the status of marriage to a tenancy contract”, punish the party who remained faithful to their vows, increase the number of divorces and put the most vulnerable at risk,

Weakening and trivialising an institution does not reform it, it breaks it.