Following the Cow
If the best interests of the child are to be the determining factor, persons seeking babies to adopt might profitably frequent grocery stores and snatch babies when the parent is looking the other way. Then, if custody proceedings can be delayed long enough, they can assert that they have a nicer home, a superior education, a better job, or whatever, and the best interests of the child are with the baby-snatchers.
The Supreme Court of Illinois quoted by Stephen Baskerville (Baskerville, 2007)
Up to the nineteenth century the ‘best interests of the child’ had fundamentally been a material issue, concerned with who would actually provide for the child’s needs. In 1893 Lord Justice Lindley extended the concept of a child’s welfare from the merely material and financial to the moral and religious,
The duty of the court is, in our judgment, to leave the child alone, unless he is satisfied that it is for the welfare of the child that some other course shall be taken. The dominant matter for the consideration of the court is the welfare of the child. But the welfare of a child is not to be measured by money only, nor by physical comfort only. The word welfare must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well‑being. Nor can the ties of affection be disregarded… The court has to consider, therefore, the whole of the circumstances of the case, the position of the parent, the position of the child, the age of the child, the religion of the child so far as it can be said to have any religion, and the happiness of the child (Re McGrath, 1893).
We could hardly disagree, but within a century such a reasonable position had become hopelessly corrupted. The Guardianship of Infants Act 1925 had been negotiated between the Home Office and the feminist groups and was only perfunctorily debated in Parliament. One perceptive magistrate was quoted observing,
Any number of societies existed to look after the rights of women and mothers, but he had yet to hear of a society that looked after the rights of fathers. It might be that the rights of fathers in this case were somehow overlooked in the desire to amplify title rights of mothers (Hansard, 1926).
Indeed, these endeavours of the early feminists have been represented by Helen Reece of University College, London, as a covert way of ‘amplifying the title rights of mothers’ and giving them equal authority to fathers by subordinating both of their interests to those of their children under the pretence that it was all being done in the best interests of the child (Reece, 1996). This is reflected by an almost obsessive promotion of children’s rights and the total rejection of the idea that fathers have any rights at all.
The 1925 Act also allowed cases to be heard in the magistrates’ courts, opening up family law to the working classes and offering lawyers a new market. Parents were encouraged to take disputes to the courts and so the number of cases increased; it became commonplace and acceptable for issues concerning the parenting of children to be resolved in the courts rather than by parents acting together in cooperation. Surrendering parental authority to the courts was no longer seen as indicative of parental failure and thus the typical position of the court, employing the ‘tender years’ doctrine, came to dominate British family life.
While the diminution of paternal authority was accepted as inevitable, the lawmakers sought to ensure that this authority would not fall into the hands of mothers, ‘indeed the 1925 Act was a political device to actually deny women equality of parental rights’ (Maidment, 1984). It achieved this through the historic introduction, in Section 1, of the principle that the court’s ‘first and paramount’ consideration should be the child’s welfare,
Where in any proceedings before any court… the custody or upbringing of an infant, or the administration of any property belonging to or held on trust for an infant, or the application of the income thereof, is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration, and shall not take into consideration whether from any other point of view the claim of the father, or any right at common law possessed by the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father.
It is essential to understand exactly what the welfare principle represents. It is a legal device which enables the courts – and agencies of the state such as social workers who have the courts’ sanction – to make decisions regarding a child which formerly would have been made by the child’s parents. Thus it undermines the authority of parents and ultimately the institution of the family itself. According to solicitor Oliver Cyriax, the best interests standard—
is no more than a label affixed to the case retrospectively, irrespective of current research, irrespective of best opinion, irrespective of the facts of the case, irrespective of governing principles, irrespective of the merits of the case and irrespective of the outcome. This is an inevitability; all decisions (whatever they are) must by definition be in the best interests of the child since otherwise they would contravene the law. The definition of ‘the best interests of the child’ is whatever decision the Court reached.
The feminists had been deceived; the Ministers and their officials had successfully concealed from them the compromised nature of the legislation. What NUSEC had wanted was a shift of power from fathers to mothers but what they achieved was an unforeseen shift to the state. In the seminal case of J v C (J v C, 1970) the Lords interpreted the Guardianship of Infants Act 1925 to mean that consideration of the child’s welfare should be the court’s only consideration in guiding the course the case should take. Lord MacDermott said,
I think [the words of the 1925 Act] connote a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child’s welfare as that term has now to be understood.
The court ignored a 1931 precedent (Re Carroll (an infant), 1931) that the wishes of a child’s parents should be decisive unless they had neglected their duties and ruled that a 10-year-old should stay with his Protestant foster parents in England rather than return to his natural Catholic parents in Spain. This set a new and alarming precedent, ensuring the removal of a child from ‘unimpeachable’ parents who had done nothing wrong merely because an outsider could better promote the child’s welfare. The ‘child’s best interests’ now meant that the biological bond, the behaviour of either parent, the wishes of either parent, or their ability to care for their children meant nothing if another adult could offer the child a better home. The child of poor but adequate parents could be taken from them and reallocated to more affluent adoptive parents, and the welfare principle ensured it would all be ‘in the child’s best interests’. Section 31 of the Children Act 1989 later limited this power by requiring the court to find ‘that the child concerned is suffering, or is likely to suffer, significant harm’, a concept we shall explore in Chapter Eighteen.
J v C unravelled the careful compromise of the 1925 Act which had ensured the child’s welfare should be the paramount consideration, but not the only one. The carefully structured legal evolution of the nineteenth century was unravelling. The situation was further complicated when divorced and never-married mothers began to demand the same rights as married mothers. The ‘best interests of the child’ standard was intended to replace the agricultural ‘tender years’ doctrine, but it failed to do so, despite reiteration in the 1989 Children Act. What it did do was introduce, as it were by the back door, two further issues into family law.
- It led, first of all, to the idea that children have ‘rights’, and this in turn led to a potential conflict between the rights of children and those of their parents. By turning welfare into a rights issue and concentrating exclusively on the rights of one individual the legislation had the effect of pitting the child against his family, and when the child’s interests conflict with the mother’s it is hers which triumph. Thus the best interests standard was used to excavate a chasm between children’s interests and those of their parents; but the state is less able to protect a child’s rights than a properly supported family and giving a child independent rights does not resolve the problem (Burt, 1978). In turn this has led to organisations representing fathers to insist on their own rights and to attempt to present the issue as a grand denial of civil rights.
- Out of the doctrine of children’s rights ‘rose the more subtle and insipid rampage of judicial discretion’ (Wardle & Nolan, 2002) which supersedes case precedent and even legislation. The fundamental flaw in this practice is that the judge himself then assumes the role of witness,
In effect the trial judge, as a basis for [his] findings, made of himself a witness, and in making [these findings] availed himself of his personal knowledge; he became an unsworn witness to material facts without the [parties] having any opportunity to cross-examine, to offer countervailing evidence or to know upon what evidence the decision would be made (Kovacs v Szentes, 1943).
The ‘welfare principle’ enables the transfer of parental power from parents to the state and hands unlimited power over children to local authority and state employees. The ability to remove children from their parents and reallocate them through adoption to other, more politically acceptable adults is the most extreme example of this, and is considered more fully in Chapter Nineteen. The wholesale politicisation of this policy forms the basis of the Every Child Matters agenda, to be discussed in Chapter Twenty-Two. Such an arrangement invites collusion between the state and the divorcing spouse who has invited state authority into the family; any principles of justice are substituted by whatever theory is currently fashionable.
The welfare principle is the sacred cow in child law and may neither be questioned nor challenged. It was introduced to replace the ‘tender years’ doctrine, but has failed to change the way judges decide cases. Judge Robert Page says, ‘I represent your kids, but I don’t want to, because I don’t love your children. I don’t even know them. It is a legal fiction that the law’s best interest is your children’ (Barr, 1998). Whereas the family used to be viewed as a whole, and the first and best protection of a child, under the 1989 Act it became a cradle of competing interests and a threat to the child, which must be neutralised by the intervention of the courts and social services.
A horrific story from Australia illustrates all that is wrong with the welfare principle (Nowell, 2010). A mother, despite being found by the court to be ‘violent, untruthful, lacking moral values and responsible for the psychological and emotional abuse of her children’, and to have exhibited ‘dreadful’, ‘cruel’ and ‘malicious’ behaviour, including making false allegations of sexual abuse against the father, was nevertheless awarded custody. The ‘principled’ father who had ‘much to offer his children’ was effectively excluded from their lives. Historian John Hirst provided this commentary,
Even on the present test of a child’s best interests, it is hard to see how a child will benefit from being left with such a mother. She has burdened the child with the story that her father abused her.
Then when the child comes of age she will discover that the mother’s accusations were false.
In his essay Kangaroo Court: Family Law in Australia (Hirst, 2005) Hirst argued that the absolutist emphasis on the welfare principle has been used to justify the courts’ refusal to enforce their own orders for contact; a refusal which often leads directly to the total eradication of a father from his children’s lives. Courts use the principle to deny fathers even a presumptive right to have contact with their children, allow resident parents to change their children’s names without the courts’ consent and prevent parents accused of child abuse from seeing their children even though no offence has been proved. He argued that a child’s welfare should be taken into account, but should not be the paramount consideration.
Today the principle has been hijacked by those who believe that non-resident parents represent some significant threat to their own children, and so it has come to mean little more than protection from male abuse. Ideological opposition to paternal involvement can be recognised by the ubiquitous tag, ‘where it is safe’. Judges are forced to decide cases according to their discretion which is capricious and not open to cross-examination; variability in the way cases are treated is excused with the mantra, ‘each case is different’. This is nonsense; if it were really true then there could be no law of general application, but all children share the same needs and rights, and the law must apply to each of them equally.
When two parents separate the question arises of where their children will live. In most jurisdictions the legal systems operate a ‘winner takes all’ policy to decide what is usually called ‘custody’. Stephen Baskerville plays on this unfortunate term in the title of his important book Taken into Custody (Baskerville, 2007). There are two types of custody: legal custody, which determines what legal rights a parent has over their child, and physical custody, which determines with which parent a child lives. In the UK legal custody is shared when both parents have parental responsibility: it is a legal fiction designed to give the impression that both parents have equal rights over their children and are thus treated equally, but it does not ensure shared parenting – you can have parental responsibility for your children and still never see them again. In the UK since 1989 physical custody has been termed ‘residence’ and is supposed to determine only with which parent a child lives: it is not intended to confer any status.
The parent who does not win physical custody is awarded what in the US is termed ‘visitation’ – that is, the parent is allowed to visit the child, and to become a mere visitor in his life. In the UK this used to be called ‘access’ and is now called ‘contact’: the language of the prison visit is replaced by that of the alien encounter. In many jurisdictions fathers campaign demanding that the winner-takes-all approach should be rejected in favour of a shared approach. Shared parenting happens when mothers and fathers are treated as equal parents with balanced rights and shared responsibilities, and financial arrangements are based on a symmetrical, gender-neutral, formula. In the UK shared residence is a legal arrangement enshrined in the Shared Residence Order though many of these are contact orders in all but name and preserve the unequal power relationships typified by the sole-residence-plus-contact model.
We have seen that it was the ‘tender years’ doctrine which persuaded courts to make custody awards in favour of only one parent and that the ‘best interests of the child’ standard was supposed to have superseded it; this development was thwarted, however, by the twin theories of the ‘primary carer’, which teaches that a child needs only one parent following parental separation, and of ‘maternal deprivation’, which teaches that the custodial parent should always be the mother.
The primary carer doctrine was first popularised in the book Beyond the Best Interests of the Child (Goldstein, Freud, & Solnit, 1973). Its authors were Joseph Goldstein, Professor of Law, Science and Social Policy at Yale University Law School, Albert Solnit, Director of the Yale Child Study Centre, and Anna Freud, Director of the Hampstead Child Clinic and sixth child of Sigmund. Using data gathered from very small samples of terribly deprived and impaired Jewish refugees who arrived in Britain after the war and were taken into residential care in the Hampstead Nursery and Bulldogs Banks, the academics ignored entirely the damaging lack of stimulation the children had received and came to believe that all interaction between parents following divorce was confrontational and potentially violent and that custody should therefore be awarded only to the ‘psychological’ parent while the other should be eliminated; shared custody would lead to damaging conflicts of loyalty (Goldfarb, 1943) (Spitz & Wolf, 1946). Decisions about contact with the other parent should be made only by the custodial parent,
Once it is determined who will be the custodial parent, it is that parent, not the court, who must decide under what conditions he or she wishes to raise the child. Thus, the non-custodial parent should have no legally enforceable right to visit the child, and the custodial parent should have the right to decide whether it is desirable for the child to have such visits.
In an epilogue to the book the authors clarified, ‘We reasoned, always from the child’s point of view, that custodial parents, not courts or noncustodial parents, should retain the right to determine when and if it is desirable to arrange visits’. And how should the courts determine which parent should have custody?
A judicially supervised drawing of lots… might be the most rational and least offensive process for resolving the hard choice.
Thus decisions determining custody were not to be based on any factors which actually promoted the best interests of children or which had any evidential support. This central tenet of Beyond the Best Interests of the Child is not only unsupported by evidence but, worse, promotes harmful outcomes for children by giving legal support to the destruction of one of the child’s most important relationships. Since, as psychologist Sanford Braver says, ‘there is no evidence that there is a scientifically valid way for a custody evaluator to choose the best primary parent’ (Braver & O’Connell, 1998), it scarcely matters which parent is removed; some judges really do toss a coin. With the abolition of the fault concept in divorce this theory of sole custody provided a straight-forward solution for custody disputes. The ‘best interests of the child’ standard was set aside in favour of a ‘least detrimental alternative’ standard.
The theories of Goldstein et al. drew heavily on the ‘attachment theory’ work done by psychoanalyst Professor John Bowlby (1907-1990) in the 1940s (Bowlby J. , 1951). Attachment theory is a varied and fluid set of theories about how children develop and relate to their parents and to others. It borrows widely from other disciplines including ornithology and neurology and provokes controversies and rivalries amongst its disciples. In early attachment theory, Bowlby proposed that a child is born programmed with a need to form attachments to others to ensure survival. Babies use certain behaviours (called ‘social releasers’) such as crying and smiling to stimulate caregiving from the adults to whom they have attached and to maintain proximity to them. Bowlby’s work was originally inspired by Konrad Lorenz (1903-1989), who studied how goslings imprint on the first moving object they see (like Lorenz’s wading boots) and behave in such a way as to keep the mother nearby; Lorenz showed this was an ethological or survival behaviour (Lorenz, 1935). Extending Lorenz’s work on goslings to humans, Bowlby speculated (without empirical evidence) that infants could attach only to one adult, generally their mother, and hypothesized that both infants and mothers have evolved biological needs to remain in close contact with each other. This is called Monotropy.
Because this primary attachment forms the prototype for all the child’s other relationships, Bowlby believed that the attachment between mothers and infants could not be broken in the first few years without causing serious, permanent damage to the child’s intellectual, social and emotional development; this is called the Maternal Deprivation Hypothesis and is indistinguishable from the ‘tender years’ doctrine. For Bowlby the father is of only indirect significance as a support to the mother; he has no direct emotional significance to the infant.
In the 1970s psychologist Mary Ainsworth (1913-1999) expanded on Bowlby’s theory by assessing the nature of children’s attachments using an evaluation tool called the ‘strange situation’ in which a child’s responses and degree of anxiety are monitored while its ‘primary carer’ and a stranger enter and leave the room it is in. She concluded that there were three types of attachment; later researchers have confirmed her conclusions but added a fourth attachment style.
Together these theories have led to the ideology which pervades the Family Courts today in which the mother is regarded as the primary carer and therefore superior and essential while the father is seen as secondary and therefore inferior and optional; the custodial or resident parent is handed dominant authority and orders are made which impose a contact limit of only a few hours every couple of weeks for the other parent, restrict bonding, and make the continuance of healthy family relationships impossible. In the years since Bowlby attachment theory has grown and developed, showing that children need attachments with both of their parents, not just one, and the doctrine of the primary carer has been exploded as a myth. Why, then, do the courts fly in the face of current research and understanding, continuing to apply the old principles of the primary carer and maternal deprivation? For the answer we shall have to consider a further ideology which has come to dominate both the legal and social work professions, and we shall then understand the nature of the bias which fathers encounter in the family courts.
Re McGrath,  1 Ch 143 (1893).
Re Carroll (an infant),  1 KB 317, 356 (1931).
Kovacs v Szentes, 33 A.2d (Connecticut 1943).
J v C,  AC 668 (House of Lords 1970).
Barr, S. (1998, May). Refereeing the ugliest game in town. New Jersey Monthly, 52-55, 71-74.
Baskerville, S. (2007). Taken into Custody: the War against Fathers, Marriage, and the Family. Cumberland House.
Bowlby, J. (1951). Maternal Care and Mental Health. Geneva: World Health Organisation.
Braver, S., & O’Connell, D. (1998). Divorced Dads. Tarcher.
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Hirst, J. (2005). Kangaroo Court: Family Law in Australia. Black Inc.
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Maidment, S. (1984). Child Custody and Divorce: the law in social context. London: Croom Helm.
Nowell, L. (2010, January 10). Fury at ruling in custody battle. Sunday Herald Sun.
Reece, H. (1996, December ). Subverting the Stigmatization Argument. Journal of Law and Society, 23(4).
Spitz, R., & Wolf, K. (1946). Anaclitic Depression, Psychoanalytic study of the Child.
Wardle, L. D., & Nolan, C. L. (2002). Fundamental principles of family law.