Flotsam and Jetsam
So all this was going on, along with the usual flotsam and jetsam: the campaign group Fathers 4 Justice threw a condom filled with purple flour at me during Prime Minister’s Questions (it was the shortest PMQs I ever did, and much was I grateful).
Tony Blair (Blair, 2010)
A pilot project called ‘Early Interventions’ (EI) was due to be launched in October 2003 to test a major set of reforms. During the previous year there had been 61,000 court applications for contact and family proceedings had cost the taxpayer £426 million; a High Court judge, Peter Singer, said,
The situation has now become so grave that imaginative and radical proposals warrant serious and urgent consideration. With the family division in London experiencing a near 50% increase in its case load over the past two years, things have reached crisis point. The system isn’t working in the best interests of the children. It is not uncommon to have a case where litigation may have been virtually continuous for four or more years (Wheelwright, 2003).
The Guardian article quoting Singer also quoted Duncan Fisher from Fathers Direct on the imminent implementation of the Early Interventions project, ‘This is the first time there’s been a workable solution to talk about and its support from such senior judges is a major breakthrough’. ‘Early Intervention’ is the process whereby parental disputes over residence and contact are dealt with before they get as far as the adversarial court system and before either side becomes implacably hostile and the dispute becomes intractable. The EI project was devised by the New Approaches to Contact family policy review agency (NATC) in order to prevent Family Court cases reaching the point of intractability. The two core elements of the project were programmes to educate separated parents in how to act in the best interests of their children, and compulsory mediation; as Judge John Lenderman of Florida said, ‘I’m totally convinced mediation should be mandatory. Every judge that I’ve talked to around the United States says mandatory mediation is the way to go’. Mandatory mediation would prevent parents resorting immediately to litigation in order to get the outcome they wanted. The project aimed to ensure that children continued to have ‘generous, frequent and continuous contact’ with both parents following divorce; the former solicitor Oliver Cyriax said, ‘Most parents, judges, experts and professionals already agree. An ideal model of alternate weekends, half the holidays and midweek visits is hardly controversial’.
The trigger for these reforms, dating back to the mid-1990s, was MPs’ realisation that the Family Court Welfare Service (the predecessor of CAFCASS) had no guidance for its practitioners on the suitable level of contact between a father and his child. The Service ‘did not regard it as appropriate or feasible’ to form an opinion on whether recommendations by its officers were reasonable. This lack of guidance meant contact was often derisory and insufficient for the safeguarding of relationships. The EI reforms would have introduced a long-overdue new model for the family courts, fully articulated, fully-costed, fully-detailed and fully-endorsed, and with an agreed management team geared to deliver the requisite procedural changes within nine months of start-up.
The initiative was to be run jointly by the Departments for Constitutional Affairs (DCA) and for Education and Skills (DfES); it was headed by Oliver Cyriax. Based on eight years of protracted research and discussion, including analysis of functioning and successful schemes such as the Norwegian system and the ‘Florida model’ (schemes first referred to in the Law Commission Working Paper 96 of 1986), it culminated in a multidisciplinary conference on 10th April 2003 chaired by Joyanne Bracewell; she said, ‘this is the way forward… it would be incomprehensible if the pilot project did not receive official sanction from the DfES and the Department for Constitutional Affairs’ (Cyriax, 2004).
It was submitted to the DCA on 8th October, on the 21st it was recommended by Lord Filkin, the DCA Minister, on the BBC2 programme Newsnight and on the 23rd to the Commons by Margaret Hodge; it was passed on to civil servants at the DfES for implementation. The project was endorsed by the DCA Minister, the President of the Family Division, the family judiciary, the Family Law Bar Association, the chairman of the Solicitors Family Law Association (now Resolution), the Coalition for Equal Parenting, Fathers Direct, Families Need Fathers and – vitally – the leading child development consultants, as well as other leading stakeholders. It is quite possible that the scheme, if enacted, would have been effective in resolving contact disputes before they reached the courts and could have paved the way to a complete transformation in the way private law disputes were resolved; scandalously it was allowed to fail.
The reforms were hijacked by two civil servants, Brian Kirby, CAFCASS Partnership Manager, and Bruce Clark, a civil servant at the DfES who came from a family protection background. They substituted an old CAFCASS flop called Family Resolutions for EI and then passed this for implementation to a ‘Design Team’ of nine civil servants established at the DfES by Margaret Hodge. Under Clark’s scheme the priority was not continuing contact at all but protection from ‘harm’: the universal application advocated by Women’s Aid of principles intended originally only for cases in which there were genuine concerns of violence and abuse. Any application for increased contact would trigger an investigation and risk assessment. Where the quality of contact was deemed satisfactory there would be no need to increase it; where it was unsatisfactory there would be no more contact; where the quality was indeterminate there would be a cessation of contact while the case was deferred.
The minutes of the first meeting on 17th March 2004 and chaired by Mavis MacLean do not mention the EI project; Clark ensured that none of the committee was familiar with the project, nor with existing family law or contact disputes. On 19th April it was claimed that the NATC EI documentation had been ‘mislaid’; 10 days later it emerged it had never been read. On 25th May the team rejected the proposals without discussion. Eight years of specialist development work were written off. Cyriax described the fiasco as, ‘a green light to withhold any increase even where – as often happens – contact is just two hours a fortnight. Applications for more access can be dismissed because the alleged “quality” of the applicant’s existing contact is good – and hence sufficient – or bad, and thus too much’ (Cyriax, 2004). The ministries, and Parliament, were consistently misled as to the nature of this new scheme, and fooled by Bruce Clark into thinking that it was really the original, and that only the name had changed.
On 21st July the Government launched its Green Paper, Parental Separation: Children’s Needs and Parents’ Responsibilities. In Paragraph 68 it stated that ‘the development of the Family Resolutions Pilot Project [FRPP] has been informed by the earlier work of an ad hoc group which presented its early intervention proposals to the Government in Autumn 2003’. This was not the case; the FRPP was not the same as EI. In September a Pilot Project was launched in Brighton, inner London and Sunderland and aimed to attract 1,000 participating couples. An evaluation of the pilot was published in March 2006 by the University of East Anglia (Trinder, Kellett, Connolly, & Notley, 2006). It found that only 62 couples had been referred by the courts to the pilots, that 18 dropped out before even starting, and that only 29 completed the programme. District Judge Nicholas Crichton blamed the failure on the lack of readiness, poor sales pitch and a suspicion amongst potential clients that it was merely more of the same (Department for Constitutional Affairs, 2006). But one of the principal areas where the Family Resolutions Project differed from the EI scheme was the lack of compulsion, which could not be introduced without enacting additional primary legislation; Judge Crichton,
I do not see a difficulty in saying to people, ‘If you want access to a judge in a courtroom, which is a very expensive facility and not necessarily the best facility to try to resolve your problems, you have first of all to try one of a range of options to see if we can find another solution to your problem,’ but because we could not do that we got very significantly less people into the project than we had hoped for.
His colleague, James Munby, agreed, ‘Some will be disappointed – and I can understand why – that the Government’s… proposals only encourage the use of mediation and do not make it mandatory’ (Re D (Intractable Contact Dispute: Publicity), 2004). The official report into the pilot concluded,
The pilot was a mixed success, with some of the innovative elements, particularly the group work stage, showing real promise, although referrals and completions were clearly disappointing. The pilot has not produced a clear blueprint for the future development of services, but it has provided a number of important pointers for future developments within the family justice system and beyond. In particular, the pilot has underlined the potential of interventions designed to help parents focus on the needs of children and to support effective co-parenting (Trinder, Kellett, Connolly, & Notley, 2006).
Clark was the subject of an ‘internal investigation’ by his Permanent Secretary, Sir David Normington, who in September 2005 cleared him of all wrong-doing. Clark had previously been implicated in a similar incident relating to another area of family law, mismanaging an attempt to develop diagnostic criteria for Münchausen’s Syndrome by Proxy. Brian Kirby remained in CAFCASS, and continued to make reports based on a discredited ideology. Mavis Maclean went on to head up OXFLAP, the asylum for academics ideologically opposed to shared parenting. Two years later, Family Resolutions had disappeared without trace. The major reforms – which everyone agrees are still needed – continue to lie inert, ready for implementation, in the EI project. The objective of the DfES and DCA civil servants was to prevent ministers from finding out what went wrong, their role in what went wrong, and how to put things right. The legislation which finally resulted, the Children and Adoption Act 2006, was profoundly unhelpful; it was based on the EI rhetoric of liberalisation, facilitating contact, and reform, but the machinery of the Act was the machinery of deferral, oppression, restriction and the denial of contact. The Children and Families Bill 2013 finally proposed making attendance at a mediation and assessment meeting (MIAM) mandatory, but only for the applicant.
In the Spring of 2004, after 60 activists invaded a CAFCASS conference at the Britannia Hotel in Coventry, the family court minister, Lord Filkin, invited Fathers4Justice to ‘crisis talks’ to head off all-out civil disruption and promised a discussion paper for the summer. On 7th April the Economist reported how senior family judge Sir James Munby had gone public in order to launch a blistering attack on the family justice system in which he said judges needed to ‘face up honestly’ to the system’s failings (The Economist, 2004). Munby blasted the courts for ‘scandalous’ delays and mismanagement of cases, suggesting that the way courts dealt with contact applications might even breach the European Convention on Human Rights. He called for swift enforcement and short gaol terms for mothers who persistently flouted contact orders. Significantly, he noted the need for the system to take account of public opinion over its failings; he feared the number of fathers who had justifiable grievance was ‘too many for comfort’.
2004 was the year Fathers4Justice achieved its zenith; recognising the media had little interest in the unfolding scandal within family justice, O’Connor’s strategy to ‘make the injustice visible’ was to piggy-back the family justice story onto the group’s exposure of serious gaps in post-9/11 national security. On 19th May Guy Harrison and Ron Davis gained access to the VIP gallery of the House of Commons during Prime Minister’s Questions. As Tory leader Michael Howard concluded a particularly penetrating assault on Blair, Harrison hurled a condom filled with purple flour and glitter at the Prime Minister. It burst open on Blair’s back, showering John Prescott and Gordon Brown who were seated behind him, and creating a purple cloud which drifted across the chamber, necessitating evacuation. Scores of panicked MPs rushed out into the street, covered in dust; only former Guardsman Iain Duncan Smith remained stoically seated. Harrison returned to the roof of Westminster Hall in September 2005 where, in the shadow of Big Ben, he unfurled a banner urging FOR FAWKES SAKE, CHANGE FAMILY LAW.
In July F4J activists stormed York Minster where the Church of England was holding its annual General Synod and protested the Church’s silence over the escalating crisis in family law, which the Synod hadn’t debated since 1991. Permitted to address the Synod; O’Connor accused the Church of making £25 million a year from selling weddings but of failing to support families despite half of them falling apart; it refused to help fathers who turned to the Church for help, and even turned fathers away from ceremonies like baptism,
The Archbishop of Canterbury is the Arthur Daley of the Christian world. He flogs you this thing called marriage. A few years later, when it breaks down, there is no roadside recovery and no after-sales service.
On 13th September F4J executed its most dangerous and high profile stunt, and achieved its highest level of media coverage. While the group was officially attending Ron Davies’ hearing at Bow Street Magistrates’ Court, a small team set off with ladder and superhero costumes for Buckingham Palace. As one of the team steadied the ladder, painter and decorator Jason Hatch climbed, closely followed by Dave Pyke. While Hatch managed to reach the front of the Palace, Pyke was forced down by armed police. Dressed as Batman, Hatch stayed on the Palace for 5 hours and displayed a banner proclaiming, SUPERDADS OF FATHERS 4 JUSTICE: FIGHTING FOR YOUR RIGHT TO SEE YOUR KIDS.
The media response was unprecedented; these daring and colourful actions, supported by an entirely new approach to family campaigning with professionally-designed banners, posters and leaflets (a huge advance on the hand-drawn bed-sheets and placards employed by Mark Harris and DADS), won the group unparalleled publicity. Fathers4Justice groups, some official, some not, proliferated across the world, in the US, Canada, South Africa, India, Israel, Holland. At the same time the backlash began; personalised rather than anonymous campaigning led the press to focus on the individuals involved and not the cause. Deborah Orr wrote in the Independent,
It is this obsession with their own plight, rather than the pursuit of a more inclusive approach, that makes Fathers4Justice an unattractive organisation…
By deciding to take such a decisive step into the public arena, and to orchestrate such a high-profile media-friendly campaign, Fathers 4 Justice have opted instead for more confrontation. Their protests are provocative, personal, immature and egotistical (Orr, 2004).
Crusaders for a vital cause were presented as canvassing for their own cases and tabloids like the News of the World and the Mirror, desperate to discredit the campaign, offered Hatch’s and O’Connor’s ex wives thousands to dish the dirt, and there was plenty of it. The real message wasn’t getting through but O’Connor was not open to constructive criticism. Journalists infiltrated local groups and began collecting video evidence for future documentaries. O’Connor himself was labelled a terrorist by the security services and his home and car were bugged. He was embarrassing too many people in high places
At the Conservative Party conference in October Theresa May, Shadow Minister for the Family, delivered an important and much-quoted speech lambasting CAFCASS and promising radical reform,
CAFCASS has been a disaster from Day One. Its officers write tens of thousands of trivial reports each year – on decent families caught up in divorce. CAFCASS breeds heartache and delay. CAFCASS clogs up the system. It’s the bottleneck in the divorce system wasting hundreds of millions of pounds a year.
Under the next government, there will not be another generation of parents without children, and children without parents. Everyone – including the lawyers – accepts the time for change is overdue.
Refusing to condone the Fathers4Justice campaign, she asked, ‘Can any parent – hand on heart – imagine anything more terrible than losing their children? What would you do to see them? We’re going to build a proper system of justice’,
Children don’t need frequent and continuous litigation. They need frequent and continuous contact – with both parents. We must end the era where parents litigate for years just to see their children for two hours a fortnight. Yes, we need more mediation. But mediation must take place in a clear context. Parents have to know what the courts are likely to order. Predictability is so important in the months before a case starts.
At the end of the day, the issue is really very simple. What do children want: one parent or two?
Bob Geldof agreed to support the campaign against the family courts provided it stayed ‘funny and legal’ (Geldof, 2005). Under the slogan In the Name of the Father Fathers4Justice put the Government on 40 days’ notice that families would no longer tolerate the abuses of the system and issued Margaret Hodge, Jonathan Tross, the new chief executive of CAFCASS, and Elizabeth Butler-Sloss, the President of the Family Division, an ultimatum, expressing fathers’ belief that Parliament’s intention behind the Children Act had been to make shared parenting the norm:
Enforce the will of Parliament, enforce Court Orders that are continually broken by recalcitrant mothers, enforce the fact that children have a right to a meaningful, loving relationship with both parents or face a dramatic escalation in our campaign.
On Trafalgar Day 2004 the protest Fathers4Justice referred to as The Rising commenced. Just hours after the ultimatum to the Government expired a team of five, two of them dressed as Batman and Robin, scaled the front of the Royal Courts of Justice, planning to remain for a week. About a dozen more members breached the security of CAFCASS headquarters and sought out Jonathan Tross, entering the building with megaphones, whistles and air-horns. The police arrived and stood by patiently until the protestors left. About 2,000 fathers joined in the associated march through London. Hopes were high for an end to the injustice of the family courts within two years, as O’Connor had promised, but the group made the error of which the Independent had accused Bob Geldof, that they had only to alert an ignorant Parliament to the fact that the courts were not fulfilling the role given them and Parliament would act. This was far from the case.
Fathers4Justice continued to request meetings with ministers but were turned down. In July 2004, and after four cancellations, Paul Watson finally managed to see his constituency MP, Tony Blair. In view of later developments the exchange is intriguing,
I pushed him again on what he would do. Where would he stop as a decent dad? ‘Tony, imagine someone snatched Leo. Those police guys would be swarming about. Imagine that they couldn’t find him and someone said, “Just leave it Tony. He will come back when he is older.” What would you do? Would you give in? Imagine you thought he was next door in another house. Would you break that door down and risk upsetting the people inside and perhaps getting arrested. Would you do that as a decent dad? Of course you would.’ And he nodded.
I said, ‘Because you would do anything for your kids, even if it meant you sometimes overstepping the mark,’ and he said, ‘Yes, I would’. I told him he was no different to me and I was no different to him.
Funpowder plotter Ron Davis also spoke to the PM on a radio ‘phone-in in which Blair appeared to give his support to a presumption of shared parenting; he promised to pursue the matter with Davis, but never did. The standard political response remained depressing: pretend the family crisis isn’t happening and refuse to engage with campaigners. The advent of Fathers4Justice coincided with a government viciously opposed to the traditional family and its legislative activity marginalised ‘ordinary’ families, leading to what Norman Tebbit would characterise as ‘an explosive breakdown in family life’ (Tebbit, 2010). Instead, it tinkered around the periphery of the family by enabling innovations like gay adoption with the 2002 Children and Adoption Act, and same-sex relationships with the 2004 Civil Partnership Act. It promoted the belief that men were violent, abusive and a risk to women and children. Tony Blair appointed an ‘Equalities’ Minister, Harriet Harman, whose priority was equality for women at the expense of men; he sold single motherhood as a lifestyle choice with huge financial rewards and began to remove fathers by design through the Human Fertilisation and Embryology Act.
Labour’s policy on separation was published in the form of the Green Paper Parental Separation: Children’s needs and parents’ responsibilities (Departments for Education and Skills, Constitutional Affairs & Trade and Industry, 2004). This was followed by a consultation and a further report, Next Steps (Department for Constitutional Affairs, 2005). Parental Separation was pitifully modest in ambition: the emphasis was on out-of-court agreement through improving the information available to parents and introducing ‘Parenting Plans’. Access to legal advice would be extended, legal aid would be employed to encourage lawyers to work towards resolution rather than conflict, early intervention and mediation would be developed, in-court conciliation introduced and case management improved. There would be new legislation to enforce orders and CAFCASS would be coaxed away from report-writing towards problem-solving. Most of this had already been recommended in Making Contact Work.
The only measure actually introduced, in-court conciliation, was not fruitful, despite the Green Paper’s implausible claim that it was ‘successful in achieving resolution of the majority of cases without a contested court hearing’. When Liz Trinder’s report demonstrated conclusively the failure of conciliation there was no attempt by the Government to admit its error or introduce an alternative. Parental Separation was even more dishonest about the Family Resolutions Pilot Project; significantly, despite its unexpected admission that ‘court-resolved disputes produce the least satisfactory outcomes both for parents and children’, Labour remained deaf to the cries of children and never looked at any out-of-court alternatives: for most parents, court remained the only available option in conflicted cases.
Blair, T. (2010). A Journey. Hutchinson.
Cyriax, O. (2004, June 22). Contact: a question of time. The Times.
Department for Constitutional Affairs. (2005). Parental Separation: Children’s Needs and Parents’ Responsibilities: Next Steps.
Department for Constitutional Affairs. (2006). Sixth Report of the Select Committee on Constitutional Affairs. London: Stationery Office.
Departments for Education and Skills, Constitutional Affairs & Trade and Industry. (2004). Parental Separation: Children’s Needs and Parents’ Responsibilities. London: HMSO.
Geldof, B. (2005). Interview: Bob Geldof. (P. Murphy, Interviewer) laurahird.com.
Orr, D. (2004, May 22). Immature, egotistical show-offs – why don’t these men grow up? The Independent.
Re D (Intractable Contact Dispute: Publicity),  EWHC 727 (Fam) (High Court 2004).
Tebbit, N. (2010, September 6). Tony Blair didn’t save the Labour Party: he crucified it, and this country. Daily Telegraph.
The Economist. (2004, April 07). Retilting the Scales: a High Court judge stands up for fathers’ rights. The Economist.
Trinder, L., Kellett, J., Connolly, J., & Notley, C. (2006). Evaluation of the Family Resolutions Pilot Project, DfES Research Report No. 720.
Wheelwright, J. (2003, October 22). Caped Crusaders. The Guardian.