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.”

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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.

Interior

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.

Slide3

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.

Presentation to the Fourth International Conference on Men’s Issues, 2018

As requested by some people yesterday, here is the presentation I did for the Fourth International Conference on Men’s Issues, 2018.

In 1971, social worker Florence Rush delivered a speech to a feminist conference on rape held in New York which was received with rapturous applause.

Sexual abuse of children is permitted because it is an unspoken but prominent factor in socializing and preparing the female to accept a subordinate role: to feel guilty, ashamed and to tolerate through fear, the power exercised over her by men…

The female’s early sexual experiences prepare her to submit in later life to the adult forms of sexual abuse heaped on her by her boyfriend, her lover, her husband.  In short, the sexual abuse of female children is a process of education that prepares them to become the wives and mothers of America.

“Not in 100 years,” wrote the journalist Beatrix Campbell in 1988,

had patriarchal society been so profoundly and publicly confronted by the scale of men’s sexual abuse of children.  Male sexuality was the problem, but in the great sex scandal of the 1980s that had become almost unsayable.

This vile ideology informs opposition to fathers’ contact following separation.

It is also the ideology which informed the growth of social services throughout the 1970s and 80s, which was characterised by the Believe the Child movement and a series of scandals involving belief in satanic ritual abuse.

A child protection system is essential, but it has taken a form in which the interests of children are made subordinate to a virulently anti-male, anti-family cult.

My principal area of interest is in family law and what drives it.  I have written three books:

  • The Family Law A to Z – co-written with my wife, Ruth, and intended for litigants, McKenzies and students;
  • An Exercise in Absolute Futility – my first attempt at explaining how we have arrived with the system we have;
  • The Carnival of Human Misery – my second attempt. The title comes from an address by Sir Paul Coleridge to the Resolution National Conference in 2008.

Following a career in theatre and television, I have worked at a Further Education college for the last 16 years, which is long enough to observe patterns and trends, and the one that is most evident is the rapid decline in adolescent mental health.

Support is difficult to access, and the commonplace accusation that a young person must attempt suicide at least once to access CAMHS is not far from the truth.

The consequence is that only a quarter of adolescents are getting the support they need and a fifth are being turned away.

The Government is so concerned by this and by the inability of the NHS to cope that it issued a Green Paper last December, pledging an extra £1.4 billion over the next five years.

One policy is to extend responsibility to schools and colleges, and a couple of weeks ago my colleagues and I were required to do a level 2 qualification in Understanding Children and Young People’s Mental Health.  Early completion earned us an extra day’s holiday which is how I come to be here on a Friday.

Let’s establish some numbers.

The Government’s Green Paper reported that 9.6% of children have a diagnosable mental health disorder; this incidence increases with age and is more prevalent in boys.

So, in a typical class of 30, two boys and one girl will have a diagnosable disorder.  Some may have multiple problems.

An alternative picture was put forward in November by the Marriage Foundation.

They found that 27% of fourteen-year-olds reported mental health symptoms.  That’s 8 children in a class of 30.

I had wanted to show you some figures showing changes over time, but they do not exist; indeed, The British Psychological Society says,

We do not know the scale of the problem … we simply do not have accurate information from which to gauge the state of children and young people’s mental health nationally.

This slide shows how boys and girls are affected differently.

The next question is why so many young people are suffering poor mental health.

This question was asked at the training I attended, and various suggestions were put forward, from poverty to exam stress.

But none of these explanations accounts for the relatively sudden rise in the last 5 years or so.

I want to put forward four possible explanations.

The first is the transformation of children into consumers, who must have the latest phones, the trendiest trainers, and the pressure this places on parents and on household finances.

One young man in my class is reluctant to come to college – and to school before that – because his family is too poor to afford these things.  This has severely impacted on his education.

UNICEF talk about “compulsive consumerism” – parents showering children with toys and designer clothes, rather than spending time with them.

The second factor is social media, particularly via smart phones.

More teenagers now have a smart phone than a father.

Teenagers are using these up to eight hours a day and their use in classrooms is becoming a real problem.

Today’s teens stay in their bedrooms, interacting with the world virtually.  When they “hang out” with their mates, it is via a smart phone.  Only half of teenagers go out on dates.

This is why teenage pregnancy has now fallen to its lowest levels, though it is still the highest in Europe.

Numerous studies link smart phone addiction to mental health problems.  The more time they spend on their phones, the more unhappy they are.  Heavy phone use increases the risk of depression by 56% and the risk of suicide by 35%.

The third factor is the programme to institutionalise childhood.

Children are institutionalised very early, often at just a few weeks old; they are expected to conform and have reduced opportunities to interact with adults and to play.

This is the result of the failure of successive governments to reform Gordon Brown’s policies on child care.

Brown poured more than £21 billion into “childcare”, pushing up prices, so that by 2004, a typical nursery place for a child cost nearly £7,000 a year.

Brown made benefits conditional upon a mother actively seeking work, with the result that, by last year, two thirds of single mothers were back in work.

The other result is that parents spend less time with their children because they must work longer hours to pay other people to look after them.

The UK is one of only 6 European countries where children start school at 4 or 5, the rest start at 6 or 7 and this is associated with less hyperactivity and better academic outcomes.  Other studies show that the reduction in childhood play is leading to reduced synaptic development, reduced intellectual development and literacy, and increased stress and other mental health problems.

In 1998, Anthony Giddens, one of the engineers of the New Labour project, explained in The Third Way how the “democratisation” of the family demanded that responsibility for childcare be shared not only between men and women but also between parents and non-parents.

He proposed that in the “democratic family”, parents would have to “negotiate” with the state for authority over their children.

In Scotland, parents and government are locked into a desperate battle over the Named Person Scheme whereby each child will be allocated a state employee – a teacher or social worker – who will be able to make decisions on behalf of the child where the parents refuse to make a state-approved decision.

For example, if parents do not consent to their child changing gender, the Named Person will be able to provide consent instead.

The Supreme Court has blocked the scheme for now, but the government has not abandoned its attempt to impose it and is currently operating the scheme despite the fact that there is no legislation in force.

It is worth repeating what the Court said,

Different upbringings produce different people. The first thing that a totalitarian regime tries to do is to get at the children, to distance them from the subversive, varied influences of their families, and indoctrinate them in their rulers’ view of the world.

The final factor is family structure.

In their study, the Marriage Foundation found a strong correlation between family structure and adolescent mental health.

A surprise finding was the high level of mental health problems, which was higher than previous studies had found.

Another surprise was the difference in health between intact married and cohabiting families.

Cohabiting families are inherently unstable.  In married families parents make a public commitment to each other, but in cohabiting families, they do not, usually because of one party’s unwillingness to commit.

The most damaging influence on children isn’t their parents’ unhappiness; it is this uncertainty and instability.

Divorce is in overall decline, after reaching a peak in 1991.

But what is driving family breakdown isn’t married couples divorcing; it is the failure to marry and the tendency of couples to cohabit, possibly under the false belief in Common Law Marriage.

Cohabiting couples are the fastest growing household type in Britain, and make up 15.7% of households, but 52% of breakdowns.

Of parents who are still together by the time their children reach 15, 93% are married.

So, what is it about family breakdown that is so damaging to children?

The feminist answer is that it is witnessing parental conflict which harms children, but the reality is that high conflict is a feature amongst only 2% of parents and only 9% of those who separate.

The Marriage Foundation study showed how father-absence increases a child’s likelihood of having mental health problems.

Fatherlessness is the great scourge of our generation.

One child in three doesn’t live with his father.

One child in four doesn’t even consider his father a part of his family.

Nearly 50% of fifteen-year-olds no longer live with their fathers, whereas in Finland the figure is only 5% and the OECD average is 15.

The UK has some of the worst family stability in the world.

Christian Guy from the Centre for Social Justice says,

Timid politicians are becoming numb to Britain’s sky-high family breakdown rates.  Behind too many front doors, instability damages adults and children.  Yet, as these OECD figures show, broken families are not some inevitable feature of modern society or social progress.

He demanded a Cabinet-level Secretary of State for the family to coordinate pro-family policies across all government departments, and to ensure government intervention is family-friendly, something David Cameron promised but never delivered.

The right government policies, he said, could reduce the figure from 50 to 20%.

Two measures a government could introduce would be to counter family breakdown by making a clear commitment to marriage and to commence an objective evidence-based investigation into the family justice system.

Instead, it seems set to legislate to provide legal protection for cohabitation – following a recent Supreme Court ruling – and has no intention of legislating further on parental disputes, contrary to Theresa May’s pledge in 2004,

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.

Our Country deserves a better system of family justice: one that is open, fair and accountable; a system that protects children and a system that recognises as we do, that the best parent is both parents.

The common explanation for father absence, embraced by politicians and legislators – is that fathers are simply irresponsible.

David Cameron, for example, said,

I want all fathers to stand by their responsibilities and that means hunting down absent dads and making sure they’re paying their child maintenance.

Because they think they know the answer, there is no will or funding to investigate the issue.

The most recent UK study of father absence was by Jonathan Bradshaw of the University of York.  In 1998.  He said,

Non-resident fathers want close, intimate and fulfilling relationship with their children.  The majority want to fulfil all their parental obligations, social, emotional and financial, but it seems that one is unsatisfactory without the others… There is no need to enforce parental obligations – they exist and are accepted already.

Professor Edward Kruk says that ninety percent of fathers’ disengagement is the result of obstruction by the child’s mother.

He suggests fathers disengage in order to spare their children the ordeal of having to witness their degradation.

His most disturbing finding is that it is the fathers who were most involved prior to separation who are the most likely to disengage afterwards.

Irish Times columnist John Waters says,

I do not suggest that Irish men never walk away from their children.  But even those who do so, cannot be said to have made free choices: to some extent, they follow a pattern dictated less by individual conscience than cultural conditioning.  A society that honoured fatherhood would not have this problem.

Contact is whatever relationship the state allows a separated father to have with his children.

Bob Geldof called it,

Life in an hour.  Love in a measured fragment of State-permitted time.

Next Friday, on his 70th birthday, Sir James Munby will leave office as President of the Family Division of the High Court of Justice.

In 2004, Munby gave judgment in the case of Re D, in which a father was forced to abandon his fight to maintain contact with his daughter.

From the father’s perspective, the last two years of litigation have been an exercise in absolute futility.  It is shaming to have to say it, but I agree with his view.  I feel desperately sorry for him.  I am very sad the system is as it is.

Re D was widely reported in the media, as Munby intended, because he added to the judgment a comprehensive criticism of the family justice system.

The publicity was widely welcomed by father’s groups, and it bolstered the public perception that the family justice system was biased against fathers.

It is disappointing that during his stint as President, Munby hasn’t addressed these issues and has focused instead on a controversial new C100 application form and on digital divorce.

Perhaps his recent comment that dysfunctional and broken forms of family represent “a reality which we should welcome and applaud” provides a clue to his true politics.

Unlike fathers’ groups, the campaign against fathers’ involvement is supported by leading feminist academics and political figures and is extremely well funded.

It has achieved this by hitching a ride on the domestic violence industry, with its already well-established myth of male violence and abuse.

This has conferred upon the campaign two benefits: credibility and cash.

 

One of the targets of this campaign is the guidance given to judges regarding how they should approach applications made by fathers for contact, Practice Direction 12J.

The origins of 12J lie in four similar cases the President, Elizabeth Butler-Sloss, was hearing in 2000 in the Court of Appeal.  Allegations of domestic violence had been made in all four.

The Official Solicitor commissioned guidance on the cases from two child psychiatrists who specialised in the sexual abuse of children by men.

They advised that the court should begin by demanding to know the motivation for such an application.

They concluded that contested contact would always be harmful, and should take place only where it demonstrably benefited the child.

 

But this wasn’t enough for the feminist organisation Women’s Aid, who wanted a presumption of no contact at all.

They published a document claiming that 29 children had been murdered by their fathers during court-ordered contact in the preceding 10 years.

They maintained that the courts were so biased in favour of paternal contact that they were knowingly and repeatedly sending innocent children to their deaths.

They contended that judges, magistrates, barristers, solicitors, expert witness and family court advisers should all be held accountable for the deaths.

A review of the document by Lord Justice Wall revealed that eighteen of the twenty-nine children had never been subject to any court proceedings at all.  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.

Women’s Aid produced a second document in 2016, which described how 19 children had been murdered during contact sessions between 2005 and 2015.

In a foreword, Chief Executive, Polly Neate, said,

there is a deeply embedded culture that pushes for contact with fathers at all costs.

The methodology of both reports was to trawl through Serious Case Reviews, selecting only those which supported their case.  A less partial examination of the same evidence showed that hundreds of children had been killed at the hands of their mothers over the same periods.

When Jack Straw, the Minister for Justice, launched the Family Justice Review in 2010, a great opportunity to reform the system to protect children’s relationships with their fathers was missed.

The goal was to come up with a system which would be quicker, simpler, fairer and, above all, cheaper.

The review was chaired by Sir David Norgrove, sacked board member of Marks and Spencer.

Evidence was sought from very few pro-shared parenting organisations which reported that fathers found the courts of little help when their relationships with their children were threatened.

More representations were received which claimed significant damage was done to children when legislation created expectations about a substantial sharing of time.

The nature of this “damage” wasn’t specified and no evidence was offered. There had never been any such legislation.

The Final Report stated,

We remain firm in our view that any legislation that might risk creating an impression of a parental “right” to any particular amount of time with a child would undermine the central principle of the Children Act 1989 that the welfare of the child is paramount.

The academic evidence considered was limited entirely to the work of three Australians: two academics, one subsequently discredited, and a retired judge.

The review insisted,

Evidence has shown increased litigation (false) and that the change has contributed to damage to children because the term “meaningful” has come to be measured in terms of the quantity of time spent with each parent, rather than the quality of the relationship for the child.

This was disingenuous: courts can only rule on quantity, not quality.

The Norgrove panel completely ignored the huge body of evidence supportive of shared parenting.

Professor Patrick Parkinson, president of the International Society of Family Law, made a detailed refutation of all the references to the Australian experience in Norgrove’s report and summed up,

Almost none of the claims made by the Norgrove Committee, or which were made to it and relied upon by the Committee, can be sustained.

The Coalition was unconvinced by Norgrove’s findings on shared parenting,

The Government believes that there should be a legislative statement of the importance of children having an ongoing relationship with both their parents after family separation.

A working party launched a consultation into cooperative parenting which led to a presumption incorporated into the 2014 Children and Families Bill,

A court is 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.

One of the MPs on the Bill Committee, Caroline Nokes, explained,

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.

Tragically, the clause was emasculated in the Lords by an amendment specifying that involvement did not mean any particular division of a child’s time.

Lord Justice Ryder, the judge charged with modernisation, said the clause would have no effect on judicial practice, while Edward Timpson MP – who had pushed through the original clause – admitted nothing would change and the exercise had been designed to correct the perception of anti-father bias.

 

Women’s Aid continued their campaign for an alternative presumption of no paternal contact and reform of Practice Direction 12J.

Their briefings dominated a Commons debate in September 2016 on how the family courts dealt with cases involving allegations of domestic violence, and a follow-up session on Wednesday.

They produced further reports jointly with CAFCASS and with Queen Mary University of London.

They want to restrict the right of those accused of domestic violence to cross-examine their accusers and to enable greater use of injunctive orders to prevent those accused of domestic violence from making applications.

The only counter to this narrative – as far as I can see – has been a misguided attempt by Families Need Fathers to claim thousands of women were seeking Non-Molestation Orders in order to claim legal aid.

 

The family judiciary capitulated, appeared to accept the scandalous and groundless allegations made against it and issued a redrafting of the disputed Practice Direction 12J.

The alterations perpetuated myths: for example, that men exploit the court process to continue the abuse of women on court premises.  The burden of proof was shifted onto the applicant to demonstrate how his involvement would benefit the child.

A wider definition of domestic abuse meant that the mere existence of a disputed application could be interpreted as exposing the child to an unacceptable risk of harm, leading to such applications being rejected as a matter of routine.

At the very heart of the child protection system, and thus of family justice itself, is an apocalyptic belief in a battle between good and evil: a secular eschatology in which social workers and magistrates represent the last defence between innocent children and mothers and their violent and abusive fathers.

In the last century, as the millennium approached, this developed into a genuine belief in satanic covens, ritual infanticide and sacrifice.  Children were taken from their parents and interrogated, sometimes for days, until they gave the answers social workers wanted to hear.

As the millennium passed, the impulse became secularised again, belief in covens turned into belief in paedophile rings, but religiously inspired thinking became incorporated into the language of social work.

In his magisterial book, the Secret of Bryn Estyn, about an alleged paedophile ring in a north Wales care home, Richard Webster warns us,

We should resist the temptation to fall victim to one of the greatest fallacies of all ― the idea that it is the destiny of all rational societies to leave behind them superstition and unreason and to pass into an era where witch-hunts and persecution have no place.  This… is one of the great delusions of modern rationalism.  The sobering truth is that the more confident we become in the rigour and restraint of our own rational disposition, the more likely we are to become blind to those irrational impulses which are part of the very essence of human nature and which are destined to endure as long as human nature itself endures.

The current witch-hunt is not the product of some shallow and temporary aberration which floats upon the surface of our culture.  The modern child protection movement out of which it has grown is itself a revivalist movement, deeply rooted in some of our most ancient religious orthodoxies.  It is, in effect, a modern secular church which is just as powerful as traditional churches have been in the past, and whose doctrines are almost as pervasive.

We should face up to the fact that the revivalism of the modern child protection movement is something which goes deep into our own cultural history and our own psychology. It is only if we first understand the extraordinary depth and inclusiveness of this movement, and the extent to which we have all been influenced by it, that we are likely to be able to moderate its destructive power and deal effectively with the threat it poses both to innocent people and to justice itself.

 

Thank you very much.

An Error of Judgement

CAFCASS, the court welfare agency, has banded together with Women’s Aid to come up with a report on “Allegations of domestic abuse in child contact cases”.  This is unfortunate, CAFCASS is an agency in which men, just as much as women, should be able to trust, and they have been doing rather better in recent years than their truly dreadful performance in the first 10 years or so of their existence.  For them to be working cheek-by-jowl with an openly anti-male, feminist propaganda organisation such as Women’s Aid is a profoundly retrograde step and a regrettable error of judgement by their CEO, Anthony Douglas.

This is, to begin with, a study based on a very small sample of 216 cases, allegedly drawn at random from 15,160 cases during 2015/16; without independent confirmation, it is difficult to be confident they are representative.  The report relies exclusively on the content of the CAFCASS case files, which is necessarily limited; the other information in the court bundle and the court’s final decision are not utilised.  In my work “An Exercise in Absolute Futility” I observed that the HMICA courts inspectorate had had this to say about CAFCASS case files:

[C]ase files did not record what work had been done or show that the information acquired in a case had been analysed.  They neither recorded what information had been used to reach a conclusion nor stated why other information had not been used.  Standards on record-keeping were not followed.  As a result it was impossible for inspectors to ascertain whether or not children were adequately being safeguarded.

Inspectors found that reports were neither clear nor fair and were based on limited observation of children with their parents.  They excluded key information and failed to consult other professionals; they included information which was irrelevant, inappropriate, or subjective and did not serve children’s interests.  The reports drew conclusions without justification and failed to gather evidence when serious allegations had been made, allowing unsubstantiated allegations to influence recommendations.  They ignored the wishes of children, even when they were old enough to express them clearly.  Family Court Advisors habitually expressed views beyond their professional expertise; they ignored guidelines on report writing; they did not differentiate between evidence and opinion; reports were poorly written, badly spelt and ungrammatical, exposing a lack of basic education.  There was no evidence that a consistent assessment model was being used, and no signs that national practice models were being rolled out, despite claims to the contrary.

Recommendations were made which had not been discussed with the parties and which were not practicable.  FCAs jumped without intermediate steps from information gathering to a solution, they outlined their own preferred remedy and sought the agreement of parents and children, rarely exploring the positives and negatives of their preferred option.

This is the very shaky foundation on which the CAFCASS/Women’s Aid report is built.  The authors make clear that no attempt is made to verify the allegations, so these can only be cases in which allegations have been made: the authors cannot make the claim that they are cases actually involving domestic violence.

Notwithstanding this, the first conclusion drawn refers to the effect on children of domestic violence; no effort is made to distinguish between the effect on a child of actual DV and the effect of a parent making a false allegation against the other.  I would have thought that distinction was vital.

The second conclusion states, “Domestic abuse was a common feature within the sample”.  This is nonsense: the common feature is the allegation of domestic abuse.  For all the authors know, every allegation in the sample could be false.

Conclusion number 4 is that fathers were three times as likely to have allegations of domestic abuse made against them as mothers.  Given that fathers are not three times as likely to be perpetrators, some explanation of this disturbing statistic is required, but none is given.

As other studies have found, finding-of-fact hearings are seldom ordered; this may be because feminist academics have fostered the view that what matters is not the veracity of an allegation but its effect on the child.  The authors also note that the evidence gathered by other agencies – such as the police – is of little use to the courts.

Under “Conclusions about legal outputs”, the authors note that unsupervised contact is more commonly ordered where allegations have not been made, an observation so obvious, surely, as to require no declaration.  That it has been declared implies that contact might – indeed should – be supervised even where no allegation has been made.  The authors justify such a stance by observing that arrangements made by mutual agreement “could be demonstrative of a context of fear and controlling behaviour”.  Or they could be demonstrative of parents working cooperatively in the best interests of their children.

As I write this, I am watching the BBC docu-drama “Against the Law”, about the prosecutions in the 1950s against men who had committed “gross indecency”; it is difficult not to compare the persecution of homosexual men then with the persecution now of fathers.  It is no less devastating to the men concerned and no less irrational.  It is notable that homosexual activity among women had never been illegal since the introduction of such legislation in 1533.

The report makes no recommendations as such, which is only right given the unreliability of conclusions drawn from such a small sample.  Commenting on the report, Anthony Douglas insists, as he must do, “we were satisfied that in each case action had been taken to manage risk relating to domestic abuse.”  The new CEO of Women’s Aid, however, Katie Ghose, cites the long-discredited report on “19 Child Homicides” to repeat the wholly unsubstantiated and mischievous allegation that the courts routinely order contact where they know it to be unsafe.  That CAFCASS is now being enlisted to propagate this falsehood is disgraceful.  I am sure Ghose fails to see the irony.

Dancing Attendance

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The Mother’s Holiday

In 2015, a divorced mother applied to her daughter’s school, Bembridge Primary School on the Isle of Wight, to be allowed to take her daughter – subsequently referred to by the court as “Mary” – out of school for a week from 9th February to go on holiday.[1]  The school refused: the rules are clear, absence from school is allowed for sickness and unavoidable cause, for a single day’s religious observance, and for exceptional circumstances.  Holidays do not fall into these categories, and the school was quite within its rights, and its obligations to Mary, to refuse the request.  Section 444 of the Education Act 1996 reads,

(1) If a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school, his parent is guilty of an offence.

(1A) If in the circumstances mentioned in subsection (1) the parent knows that his child is failing to attend regularly at the school and fails without reasonable justification to cause him to do so, he is guilty of an offence.

(2)Subsections (3) to (6) below apply in proceedings for an offence under this section in respect of a child who is not a boarder at the school at which he is a registered pupil.

(3)The child shall not be taken to have failed to attend regularly at the school by reason of his absence from the school—

(a) with leave,

(b) at any time when he was prevented from attending by reason of sickness or any unavoidable cause, or

(c) on any day exclusively set apart for religious observance by the religious body to which his parent belongs.

(8)A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(9)In this section ‘leave’, in relation to a school, means leave granted by any person authorised to do so by the governing body or proprietor of the school.

Nevertheless, the mother took her daughter out of school regardless, and the school contacted the Education Welfare Officer, leading to the local council imposing a fixed fine of £60, which she paid.  Many parents consider these fines – which rise to £120 if not paid within twenty-one days – worth paying in order to benefit from cheaper family holidays.  In the 2015-16 academic year, 147,655 such fines were imposed, raising revenue of £8,859,300.[2]  These statutory fines give parents an opportunity to resolve these cases without going to court, but large numbers of parents refuse to pay them, resulting in some 20,000 prosecutions over the same period.[3]  The courts can impose a maximum fine of £2,500 or a three-month prison sentence.

The Father’s Holiday

At about the same time (the holiday bookings were made on the same day), Mary’s father, Jon Platt, applied to Bembridge Primary School to take his daughter out for a holiday with him from April 12th to 21st, 2015.  Again, quite properly, the school refused (on February 9th) and warned that a fixed penalty notice would apply.  Again, the parent ignored the refusal, and took his daughter to the Disney World resort in Florida.

The school sent a Fixed Penalty Notice Referral Form to the local council’s Education Welfare Officer (EWO), Karen Pothecary, who authorised the issue of the Notice on May 14th, requiring the father to pay £60 by June 4th.  Platt failed to do so and was sent a further Notice, requiring him to pay £120 by June 10th.  When he did not pay this, he was sent a letter before action on July 1st explaining the council’s intention to prosecute.  This time he did react, by email and telephone; the EWO, however, believed that the penalty notice had been correctly applied and proceedings were brought on October 12th in the Isle of Wight Magistrates’ Court.

The Magistrates’ Court Hearing

Platt pleaded not guilty.  The law – given in Section 444(1) of the Education Act 1996 – requires parents to ensure that their children attend school “regularly”, but the word is not defined; there is no specific prohibition in the Act against taking a child out of school for a holiday.  The defence relied on the case London Borough of Bromley v C, [2006] EWHC 1110 (Admin) which concluded that the court should understand “regularly” by taking into account attendance over the whole academic year.  The prosecution argued that the court should only be considering the attendance during the period in question: between April 13th and 24th; there was no attendance during that period and thus the offence was clear.

The Magistrates addressed the question of whether Mary was a “regular attender” at school.  They looked at Mary’s attendance which had been 95% prior to the holiday and was now 90.3% when the holiday was taken into account.  Both figures were within the school’s guidelines of 90-95%, although 90% represents pretty poor attendance; this level of absence, if sustained, will adversely affect a pupil’s academic attainment.  The LA had not established a case that Mary had failed to attend school “regularly”.

The High Court Hearing

The LA appealed, and the case was taken to the High Court.[4]  The question was whether the Magistrates had erred in law by taking into account Mary’s attendance outside of the dates of the holiday.  On 13th May 2016, a Divisional Court of the Queen’s Bench Division decided that the Magistrates had not so erred.  The prosecution also drew attention to the provision of Section 7 of the Education Act which requires,

The parent of every child of compulsory school age shall cause him to receive efficient full-time education suitable —

(a) to his age, ability and aptitude, and

(b) to any special educational needs he may have,

either by regular attendance at school or otherwise.

As we shall see, the wording “full-time” here provides a gloss under which the word “regularly” may be interpreted.

By this time, Platt had extended the services of his company, JMP Partnership, which specialises in PPI recovery, to include advice to parents on taking their children out of school during term time.  I’m no lawyer, but I think his interpretation of the law confuses between statute law and the law established by legal precedent.  The cases he relies on do NOT represent binding precedents.  He advises parents that magistrates must take account of a child’s average attendance over the course of an entire academic year (following Bromley) but, as we shall see, this is not binding.  He relies on a case from 1881 which held that where two or more interpretations of a statutory provision are reasonable, the court must choose the one which results in the lesser penalty.  He also argues that because “nobody REALLY knows what ‘regularly’ means, it is too vague to be the basis of any criminal sanction”; the High Court considered this contention but expressed no view upon it.

The Supreme Court Hearing

Again, the LA appealed, this time with the financial support of the Department of Education, and the case was heard by five judges of the Supreme Court, Lady Hale, Lord Neuberger, Lord Mance, Lord Reed and Lord Hughes who were unanimous in their finding.[5]  Hale’s judgment summarised the events thus far, and confined itself to considering the meaning of the phrase “fails to attend regularly”, examining three possible interpretations.  Without a specific definition of the term in the legislation, the task for the court was to determine what the intention of Parliament had been when incorporating the phrase for the first time into the Education Act 1944.  Giving judgment, Baroness Hale looked first at the history behind the legislation.

History

Section 5 of the Elementary Education Act 1870 imposed an obligation on school districts to provide “sufficient amount of accommodation in public elementary schools” for all the children of the district “for whose elementary education efficient and suitable provision is not otherwise made”.  Forcing parents to make their children available for this education was politically sensitive, however, as many parents were constantly moving in order to find work, and some relied on the income provided by their children.  Section 74, therefore, empowered the school boards to make bye-laws (1) requiring parents of children between five and twelve years of age to cause them to attend school, unless there was some reasonable excuse, (2) fixing the times when children were required to attend school, with two exceptions, one of which was for “any day exclusively set apart for religious observance by the religious body to which his parent belongs”, and (3) imposing penalties for breach.

“Reasonable excuse” included that the child was receiving alternative instruction, that he had been prevented from attending by sickness or some other unavoidable cause and that there was no suitable school within reasonable walking distance, which could be up to three miles.

In 1876, Section 5 of the Elementary Education Act prohibited the employment of children under ten, and of those between ten and thirteen who had not achieved an appropriate standard of education; Section 4 for the first time imposed upon parents a duty to cause their children to be educated in the “three Rs” of reading, writing and arithmetic.  Where parents failed to do this without reasonable excuse, local authorities could apply for court orders requiring the children’s attendance.

Section 2 of the Elementary Education Act 1880 required school boards to introduce bye-laws compelling attendance, though they could set their own timetables.  Many boards fixed the time at “the whole time for which the school selected shall be open for the instruction of children of a similar age”.

In 1918, the school leaving age was raised to fourteen and in 1921 the Education Act consolidated the existing duties of parents and local education authorities.  Case law established that a parent was required to ensure his child attended at all times set out in the bye-laws and that an offence could be committed if a child missed a single day of school, regardless of his attendance at other times.

Hale quoted Lord Hewart CJ in Osborne v Martin (1927) 91 JP 197,

It was never intended that a child attending the school might be withdrawn for this or that hour to attend a lesson thought by the parent to be more useful or possibly in the long run more remunerative.  The time-table and discipline of a school could be reduced to chaos if that were permissible.

The Education Act 1944 extended a parent’s responsibility to have his child educated in the three Rs to ensure that he received “efficient full-time education suitable to his age, ability and aptitude, either by regular attendance at school or otherwise”.  The LEA could issue a school attendance order requiring the parent to register the child at a particular school; failure to comply was an offence.  A statutory offence was also committed if a pupil registered at a school “fails to attend regularly thereat”.  Reasonable excuse for absence was replaced by a finite list: absence with leave of the school, sickness or unavoidable cause (affecting the child, not his parents), a day’s religious observance, and the lack of provision within walking distance where no alternative transport was provided.

The Education Acts of 1993 and 1996 consolidated these provisions; Section 7 of the 1996 Act added to the parent’s duty the requirement that the child’s education must be suited to “any special educational needs he may have”.  Section 444(1) preserved the offence committed where a child fails to attend school “regularly”.  It also introduced at s.444(1A) a more serious offence committed when a parent knows his child is failing to attend and has no reasonable explanation for his own failure to ensure attendance.  The circumstances in which absence is tolerated remained the same.

Sections 444A and B contained the provisions for the penalty notices, offering a parent the opportunity to avoid a criminal conviction by paying a fine.  LEAs were required to draw up their own Codes of Practice for administering these rules; these guidelines had become quite relaxed, with schools commonly allowing absences of ten school days a year, but in 2013, Education Minister Michael Gove issued new guidance reminding schools of their legal responsibilities: schools should allow absence only in exceptional circumstances.

The Court’s Interpretation

Hale observed – as I think is evident – that the movement of the law since 1870 had been to consolidate and tighten existing legislation.  Prior to 1944, a parent was liable to conviction if his child missed a day or even half a day when required to attend; case law was concerned with the scope of the statutory exceptions.  Parents are not obliged to use state-provided education – they can home-school their children or pay to have them educated privately – but if they do take advantage of state provision, they must abide strictly by its rules.

Hale resisted the idea that the introduction of the phrase “fails to attend regularly” signified a change in the existing law or a change of direction by Parliament.

The idea that “regularly” meant “at regular intervals” was easily dismissed: this could cover attendance every Monday, or where lateness was consistent; either was clearly far from Parliament’s intention.

Hale objected to “sufficiently frequently”, an interpretation employed or hinted at in some case law, on ten grounds:

  1. It can cover attendance which is not compulsory and for which there are no laws.
  2. It does not meet the intention of the 1944 Act to increase the scope and character of compulsory state education, it is implausible that Parliament should have wanted to relax the existing provision.
  3. It does not meet the intention of the 1944 Act to enhance parental liability.
  4. The exception to allow a child leave of absence “on any day exclusively set apart for religious observance” suggests the intention that a single day’s absence should justify prosecution.
  5. In Section 444(6), dealing with children of parents of no fixed abode, the requirement to attend “as regularly as the nature of that trade or business permits” does not use the word “regularly” to suggest a matter of degree but to indicate that the child should attend as often as he can.
  6. A pupil at a boarding school is expected to attend 100% of the time with no absence; why should the same not be expected of a pupil at a day school?
  7. In Section 444(7A), the absences of excluded pupils are to be measured by the day.
  8. If this were the interpretation intended by Parliament, it is too imprecise upon which to found a criminal offence, “The point is that, on this interpretation, the parent will not know on any given day whether taking his child out of school is a criminal offence”.
  9. (The reason the Secretary of State had intervened in the case) there are strong policy reasons why such an interpretation will not wash: unauthorised absences disrupt the education of the individual child and of the whole class in group learning. Teachers are expected to undertake additional work in enabling the absent pupil to catch up, perhaps to the detriment of the other pupils.  If all pupils in a class are liable to be taken out whenever it suits the parent, structured education becomes impossible.
  10. Finally, it is absurd to imagine that Parliament would have countenanced the removal of pupils during term-time either without authorisation or where authorisation has expressly been refused; “It is a slap in the face to those obedient parents who do keep the rules, whatever the cost or inconvenience to themselves”.

The only possible interpretation, therefore, as Martin Chamberlain QC for the Isle of Wight Council argued, is that the word “regularly”, from the Latin regula = rule, should be understood to mean “in accordance with the rules”.

  • Such a principle, Hale maintained, in conjunction with a “sensible prosecution policy”, such as the use of fixed penalty notices, justifies a situation where a relatively minor breach can lead immediately to criminal liability. The parent has two opportunities to avoid prosecution and a court can use its discretion to discharge the offence.
  • Prior to 1944, there was no objection raised to dealing with unauthorised school absence in this way; it was recognised that the importance of a child’s education justified a strict approach.
  • It is important that legislation which imposes criminal liability should do so in a way which enables everyone to know where they stand; Hale’s interpretation is the only one of the three which satisfies this requirement.
  • A school or governing body is empowered with the discretion to allow a child leave of absence in exceptional circumstances other than sickness and unavoidable cause, but where a school has decided that the circumstances are not sufficiently exceptional, only this interpretation is consistent with the provisions of Section 444(3)(a) and (9).
  • Section 7 of the Act requires a parent to cause the child to receive “full-time” education; that is, for the whole of the time when education is being offered to children like the child in question. Section 444 must be seen to work in harmony with this provision.

Hale concluded that “regularly” means “in accordance with the rules prescribed by the school”, and directed that the case should be returned to the magistrates with a “direction to proceed as if [the father’s] submission of no case to answer had been rejected”.  The consequence of this is that Platt, who has already spent £12,000 on the case, may well be required to pay the council’s costs as well.

Reaction

Needless to say, the decision has split opinion.  Prime Minister Theresa May approved,

What the Supreme Court has done is endorse the current position, which is right, which is that we recognise – and they’ve recognised – the importance of children being in school and getting the most out of their education but also recognise that there may be exceptional circumstances where a child needs to be taken out of school during term time and it’s right that the individual headteacher has that flexibility to make that decision.  I think that is the correct balance.[6]

Shadow education secretary Angela Rayner endorsed her view,

…If all parents took their children out of school in term-time because it was cheaper to get a holiday that way, then it would be chaos in our schools and it would affect all children.[7]

The Department for Education said,

We are pleased the Supreme Court unanimously agreed with our position: that no child should be taken out of school without good reason.  As before, headteachers have the ability to decide when exceptional circumstances allow for a child to be absent but today’s ruling removes the uncertainty for schools and local authorities that was created by the previous judgment.

The evidence shows every extra day of school missed can affect a pupil’s chances of achieving good GCSEs, which has a lasting effect on their life chances.

We will examine the judgment carefully and will update schools and local authorities as soon as possible so they are clear what the judgment means for them.[8]

Perhaps surprisingly, teachers’ groups were more equivocal; Kevin Courtney, general secretary of the National Union of Teachers, said,

Parents generally do all they can to keep children in school and teachers want them to do that.  However there will be occasions when families will have a planned holiday in term time – this can be for a many reasons such as family commitments or parents unable to take leave in the school holidays.

Fining parents is entirely the wrong route to be going down.  Many parents will be able to afford the fine and it will not be a deterrent.

This is yet another example of top-down measures being imposed on schools causing unnecessary tensions between head teachers and families.[9]

This misses the point that the fine is a way of avoiding prosecution; it is also strange that a policy which has been in place for a very long time is only now being questioned by the NUT.

Malcolm Trobe, Interim General Secretary of the Association of School and College Leaders expressed a view more sympathetic to the needs of both children and teachers,

It is vitally important that children attend school as close to 100 per cent of the time as possible.

Research clearly shows that even short breaks can have a detrimental impact on educational attainment.  Holidays should be taken in the 13 weeks that are allocated for that purpose each year, not in term time.

We were pleased that the Supreme Court also highlighted the fact that children missing school can be disruptive.  Teachers have to help these children catch up and the more pupils who are absent the greater the disruption.[10]

Legal commentators have observed that the case will inevitably lead to more prosecutions given that there is now no room for argument over whether a child has attended regularly; hence Hale’s call for a “sensible prosecution policy”.  Others welcomed the decision for establishing absolute clarity and for its fairness to the majority of parents who are prepared to toe the line.  They have called on the Department for Education to update the guidance given to schools as a matter of urgency.  Parents who still wish to withdraw their children for a holiday can do so on payment of a modest charge, which is a policy which may need revisiting.

Platt himself was unrepentant, insisting that he had “no intention” of pleading guilty when the case returns to the Magistrates’ Court and encouraging his supporters to vote out councillors who take a hard line on the issue.  He said,

The issue is no longer if it ever was about term-time holidays, it is about the state taking the rights of parents away when it comes to making decisions about their children.[11]

But again, this misinterprets the legal position, which is that parents have an obligation to ensure that their children receive education and attend school at all of those times during which education is provided for their particular child.  They have the right to take their children out of school and educate them at home or to opt out of the state system and send them to private schools, but they do not have the right, once they have accepted the provision of free state education, to disrupt their children’s education, and that of other children in the school, or to impose on teachers hours of extra work to help their child catch up.  Platt’s unfortunate daughter missed out on twelve days’ schooling in a single term, purely so that her parents could benefit from cheaper holidays.

Jon Platt and his supporters represent a modern breed of parent who has no respect for education, for teachers, for the law.  They teach their children that school doesn’t really matter, and they kid themselves that their children will learn more in a week at Disney World than in a week at school.  The high cost of holidays they complain about is a separate matter which should not be resolved through disruption to children’s schooling.

They run their lives according to what they believe to be their “rights”, with not a thought for what might be their responsibilities: to their children, to their children’s schools, to society more widely.  Rather than work as responsible adults to fulfil their obligations to their community, they are constantly seeking new rights which they can claim have been breached.  For them, free state education is not an extraordinary opportunity, historically and geographically rare, which should be embraced fully and conscientiously; instead, it is yet another entitlement, to be used or abused as they desire.  These are not the sort of parents who will offer their support to their children’s schools, offering to help organise events or outings, to join the PTA, to assist with transport.  Instead, they see the school as an extension of the state, to be challenged and humbled.  The message Platt is instilling in his daughter is “me, me, me” and everyone else be damned.

 

[1] These details are derived from Isle of Wight Council v Platt [2017] UKSC 28

[2] Campbell, P. (2017, April 07). Jon Platt Faces Defeat Over Term-Time Fines Court Battle. Retrieved from http://www.simpsonmillar.c.uk.

[3] Ibid.

[4] Isle of Wight Council v Platt [2016] EWHC 1283 (Admin)

[5] Isle of Wight Council v Platt [2017] UKSC 28

[6] Pells, R. (2017, April 06). Jon Platt case: School leaders welcome Supreme Court term-time holiday ruling. The Independent.

[7] Ibid.

[8] Yorke, H., & Mendick, R. (2017, April 06). Parents who took advantage of cheaper term-time fares prior to Supreme Court ruling could now be prosecuted. The Telegraph.

[9] Op. Cit. Pells, R. (2017, April 06).

[10] Ibid.

[11] Ibid.