While we are in the business of challenging academics, it seems appropriate to consider an article by Liz Trinder of Exeter University which appeared in the Guardian back in February (Trinder, 2012).  Trinder has made a reputation for herself as the academic wheeled out every time an anti-shared parenting sound bite is required, and she doesn’t disappoint.

“Should there be a change in the law on shared parenting after relationship breakdown?” she asks rhetorically, before pointing out that, “The Children Act 1989 currently requires that the ‘child’s welfare shall be the paramount consideration’ in family court decision-making”.  That “currently” is designed to mislead: the Government has absolutely no intention of changing this most fundamental part of the legislation.

Trinder claims that in Australia “shared-care legislation had not worked as intended and had shifted the focus from children’s needs to parent’s rights”.

Family law has actually been developing internationally, albeit clumsily and by fits and starts, away from the traditional model of sole mother custody and the reforms introduced in Australia and proposed in the UK are part of this reform.  This progression is bitterly resisted by those like Liz Trinder who peddle the “primary carer” ideology.

Trinder is not accurate; the official report into the Australian reforms did not find that the legislation had “shifted the focus”; the legislation remained absolutely clear that the paramount consideration continued to be the child’s welfare  (Kaspiew, Gray, Weston, Moloney, & Qu, 2009).

What had happened was that parents had been given a false perception that the new legislation would protect their right to have equal time with their children.  When desperate parents whose rights have been denied for so long suddenly believe that they are being recognised, they will inevitably seek to assert them.  Most of these disputes are about the division of time, so it is equally inevitable that parents will expect reform to address the allocation of parenting time.

Judges said they were having to explain to parents in the courtroom what the new legislation meant, so as to refocus their attention on their children’s interests.  One judge was quoted,

I think a lot of clients, or a lot of parties and inexperienced lawyers in this field, have confused equal shared parental responsibility with equal time.  There is no presumption about equal time.  But some people seem to think there is.

These are problems which, with the hindsight the Australian experience affords us, can be avoided in Britain.  It is clear that they are problems, not with the concept of shared parenting itself, but with its presentation, and equally clear that they were limited to the courtroom: there is no suggestion in the report that they had any impact on the outcomes for children.  The legislation had numerous beneficial effects, including a reduction in litigation of a third and a doubling of shared care arrangements.

Referring to the Government’s intention to formulate “a legislative statement of the importance of children having an on-going relationship with both their parents after family separation, where that is safe, and in the child’s best interests”, Trinder complains that this will make it “harder for courts to focus on the needs of an individual child rather than the rights of parents”.  Again, this is not supported by the official report.  Ironically, it is Trinder and her ilk who are turning this from a child-centred issue into a rights-based one; contrary to what she might like, fathers too have rights, protected by the UN Universal Declaration of Human Rights and the European Convention on Human Rights.

Trinder attributes the Government’s rejection of this sole aspect of the Norgrove report to its deception by claims made by Fathers4Justice; “there is no evidence,” she says, “to back claims that fathers are disadvantaged in court.”  This assertion is based on the 2008 Hunt and Macleod report we have already discussed in our second post on Rob George; it is the only source for such a claim  (Hunt & Macleod, 2008).  Fathers, however, are invariably on the back foot in the courts: they seldom have custody – which is 9 tenths of the law – and are lucky to be awarded contact, but contact is not parenting.

The courts, Trinder says, “have bent over backwards to try to ensure contact takes place.”  This is based on the limited observation that few applications result in an order for “no contact”.  It is an overused formula: judges rarely go out of their way to facilitate or enforce contact and the result is the very low levels of contact reported by Hunt and Macleod.  An order for no contact is not the only, or even the most effective, way of denying a father contact.  This, incidentally, explains the reluctance to discuss the apportionment of time – if the discussion of time were permitted it would very quickly be seen that the 15% fathers are typically awarded is inadequate.

“Careful research based on analysis of court records finds that the great majority of fathers get the contact they seek and often do better than mothers.”  Trinder repeats this, “the claim of systematic bias against fathers is a myth.”  The solitary piece of “careful research” is the Hunt/Macleod study, based on a mere 286 records.  This showed that only half of fathers (not “the great majority”) were actually getting the contact sought, 20% of applications resulted in no contact at all, and in half of cases there was no overnight staying contact, which is the most beneficial kind of contact for the child.  Achieving even these results can take years, a great deal of money, and a very persistent father.

Trinder’s idea that fathers “do better than mothers” is then developed into the familiar allegation that the courts are so determined to allow contact at all costs that they don’t take concerns about male violence seriously.  This was the claim made in the notorious Women’s Aid report 29 Child Homicides  (Saunders, 2004) which was thoroughly rebutted by Lord Justice Wall who showed that only 3 homicides fitted the lurid claims Women’s Aid were making  (Wall, 2006).  The only other evidence for this claim is anecdotal.

Recent changes have introduced screening for violence at the earliest opportunity and a “risk assessment” by CAFCASS.  Fathers report having to jump through hoops to prove they are not violent, and that false allegations of violence are enormously effective at curtailing contact.  Definitions of violence have been extended to include almost any behaviour with which a mother may feel uncomfortable.  Evidence of domestic violence in family court cases is limited to a handful of small sample studies such as that by Aris and Harrison which was brazenly misinterpreted by Rob George (Aris & Harrison, 2007).  These studies are so partisan and the definitions so broad that an accurate understanding is impossible.

Trinder also repeats the old 10% chestnut we dealt with in our Rob George post.  This false statistic has become a marker indicative of a particular mind-set: a “group think” which shuns any independent calculation and needs to believe that the couples who end up in court are highly conflicted and violent.

Trinder’s conclusion that the courts are not biased against fathers is not very helpful: it is parent-centred rather than child-centred, and ignores the fact that large numbers of children lose a parent following family breakdown.  It is this tragedy to which the Government is responding and for which it is seeking a solution; for Trinder the loss of a father is just collateral damage.

The bias in the system is systemic rather than systematic.  It is irrelevant that only a minority of parents go to court, because the courts influence the outcomes which parents choose when they agree between themselves or achieve resolution through mediation or negotiation via a solicitor.  These parents act “in the shadow of the law” and the law determines the prevailing culture which still considers sole maternal residence to be the norm.

It is this dominant culture, driven by the primary carer ideology, rather than any concept of equality, which provides Trinder’s starting point and explains how she can regard such an inequitable situation as tolerable.  Her veneration of the “unadulterated welfare principle” with its associated mantra that “every case is different” ensures there can be no generalisations or definitions to guide a court in understanding where a child’s best interests lie.

The implication of Trinder’s thinking, while founded in a form of second-wave feminism, is actually cruelly anti-feminist.  It condemns mothers to domestic slavery, unable to share parenting with the fathers of their children, and it binds them to dependence on child support and government hand-outs.  The avoidance of that outcome would be kinder for everyone.

Works Cited

Aris, R., & Harrison, C. (2007). Domestic Violence and the Supplemental Information Form C1A: an evaluation of the use and effects of the introduction of the form into the Family Courts. London: Ministry of Justice.

Hunt, J., & Macleod, A. (2008). Outcomes of applications to court for contact orders after parental separation or divorce. University of Oxford, Oxford Centre for Family Law and Policy, Department of Social Policy and Social Work. Oxford: University of Oxford.

Kaspiew, R., Gray, M., Weston, R., Moloney, L., & Qu, L. (2009). Evaluation of the 2006 family law reforms. Australian Institute of Family Studies.

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

Trinder, L. (2012, February 6). The Children Act is an act of kindness. The Guardian.

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