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.
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.
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.
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 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…
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”. 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. 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”.
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.
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.
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. 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.
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.
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.
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 and 60% 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.
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.
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.
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, 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.
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).
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.
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.
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”.
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”.
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.
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.
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, 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.
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.
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.
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.
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.
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.
MP Tim Loughton called the briefing “alarmist, sensationalist, misleading, empirically flawed, completely irresponsible and highly reprehensible;” it contradicted its own research.
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.
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.
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. 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. 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”.
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.
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.
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”.
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”, 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.
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.
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. 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”.
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.
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.
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.
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