A Very Serious Allegation

 

 

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.

Patrick Parkinson (Parkinson P. , 2012a)

 

 

The Family Justice Review panel reported that they had ‘heard considerable evidence’ on the issue of fathers who seek the help of the courts when their relationships with their children are threatened and find the courts little help.  Parenting organisations had asked for greater recognition of a child’s need for both parents to be written into law and had argued for a rebuttable presumption of shared residence.  On the other side of the dispute the panel had received representations from ‘children’s groups’ – that is, groups of adults purporting to represent the views of children – which indicated ‘the significant damage done to children when legislation creates expectations about a substantial sharing of time against the wishes of the parent with whom the child mostly lives’.  The nature of this ‘damage’ was not documented and no evidence was cited.

The Interim Report was ambivalent.  The panel stated that ‘no legislation should be introduced that creates or risks creating the perception that there is a parental right to substantially shared or equal time for both parents’; instead they made only this vague and meagre declaration,

But we do see merit in inserting a general statement of intent, similar to the delay principle, into the Children Act 1989.  This would reflect the case law on contact, reinforcing the importance of the child continuing to have a meaningful relationship with both parents, alongside the need to protect the child from harm.

Writing in the Telegraph, journalist Alastair Palmer summarised, ‘The only way of reconciling those two statements is to say that the authors of the Interim Report believe contact with both parents is important for children – but not important enough to do anything that might achieve it’ (Palmer, 2011).  In the Final Report the ‘general statement of intent’ had gone,

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  (Family Justice Review Panel, 2011b).

It isn’t clear why the panel changed their minds between the two reports.  No new evidence was adduced to justify the change, they merely stated, ‘The law cannot state a presumption of any kind without incurring unacceptable risk of damage to children’.  This was a rejection of ‘the importance of the child continuing to have a meaningful relationship with both parents’ and a rejection of the impact such a presumption can have in reducing parental conflict and reducing litigation.  Norgrove’s justification in media interviews was to wring his hands and regret how ‘dreadful’ the situation was for excluded parents and how glad he was not to be one of them but to insist there was nothing the law could do about it.  While lawyers and academics indulged in arcane debate there was no attempt to remedy the situation of hundreds of thousands of children losing their fathers, grandparents, and wider families.

The customary argument against a presumption is that it would conflict with the principle that the child’s welfare is paramount by elevating the parent’s interest over that of the child.  Vera Baird, Parliamentary Under Secretary at the Ministry of Justice in the Blair Government, explained,

In a situation in which it is not the child but the parents who are battling, the parents are obviously expressing what one might conjure up as the right of the child to have contact with dad, but it is dad who is fighting for that right, so it is his right.  Once one makes that the presumption, the welfare of the child cannot be paramount, so the presumption must be ousted in some other way.  In that case, one must bring to the surface the danger to the child in order to rebut (Hansard, 2006b).

In other words, in order to counter the reasonable presumption that a child should have contact with its father it is necessary to present the child’s rights as the father’s and to present contact with a father as dangerous to the child.   Baird is surely aware, however, that children can seldom make their own applications if contact is obstructed and must depend on the excluded parent to make the application on their behalf; no one else can fight for ‘the right of the child to have contact with dad’.  There is absolutely no reason why the child’s welfare cannot remain paramount: no one suggests the presumptions in the Act against unnecessary orders and delay undermine the welfare principle and the Interim Report drew the analogy with the no delay principle; in other jurisdictions where a presumption of shared parenting has been introduced the principle of the child’s best interests prevails and there is no evidence it is destabilised.  By resorting to the unproven pretence that shared parenting presents a ‘danger to the child’, and that a child’s interests are not therefore served by continuing a relationship with both parents, Baird merely demonstrates she is protecting the matriarchal hegemony.  The argument ‘from harm’ relies on the prejudice that fathers represent a disproportionate risk to their children.

Referencing the introduction of shared parenting in Sweden, the country in which shared parenting arrangements were most common (Bjarnason & Arnarsson, 2011), the Interim Report claimed, ‘The result was widely criticised, with fears that joint custody was being ordered where this was not in the best interests of the child.  In particular, where joint custody was imposed on one parent, good parental cooperation proved difficult with the child suffering’.  In 1998 the law had been amended to encourage shared parenting and the Supreme Court had interpreted this in 1999 to mean that sole custody could be awarded only where the circumstances of the case prevented joint custody; this was effectively a presumption of joint custody.  A parent wanting sole custody had to prove that this better suited the child’s needs than joint custody.

There was concern that shared custody was being imposed on parents where one parent did not wish it and where parents could not cooperate; a backlash resulted in new legislation in 2006 which allowed a court to order sole custody in cases where shared custody was ‘manifestly incompatible’ with the child’s welfare; joint custody was now encouraged only where parents could cooperate.  In the same year it became possible to share the equivalent of Child Benefit if the mother agreed (from March 2014 the mother’s consent has not been required).  The legislation was a retrograde step and resulted in more sole residence orders, the vast majority in the mother’s favour.  Swedish research favours shared parenting, demonstrating that continuing both parental relationships after family dissolution is beneficial to children (Turunen, 2013).  Swedish parents have greater respect for each other’s parenting ability, they recognise their children’s equal need for each parent and regard shared parenting as natural and just and the best way parents can express their parental ambitions (Öberg & Öberg, 2011).

It seems that Norgrove’s distorted view of the Swedish experience was derived from misleading accounts given by children’s groups and not from reading the academic literature – none of which is cited; this impression is strengthened by Norgrove’s lack of analysis.  The rejection of shared parenting in his report relied exclusively on the Australian experience, and on the specifically negative responses to it by a trio of Australian academics, Jennifer McIntosh, Richard Chisholm and Helen Rhoades.

The Family Law Amendment (Shared Parental Responsibility) Act 2006 was built on the most comprehensive and complete body of research ever undertaken into shared parenting and was introduced into Australia against a background of aggressive feminist opposition.  The Act incorporated four principle reforms:

  •          a requirement for parents to attend family dispute resolution before filling out court applications except where there were child abuse and DV concerns;
  •          an increased emphasis on the need for both parents to remain involved in their children’s lives, including a presumption of equal shared parental responsibility;
  •          a greater emphasis on the need to protect children from abuse and family violence; and
  •          legislative support for less confrontational proceedings via the Less Adversarial Trial process (LAT).

Judges were required to consider that arrangements were practicable, the distance between parents’ homes, the ability of parents to communicate with each other and implement a shared parenting arrangement, and the impact of shared care on the child.  Detractors said it gave fathers a false expectation they would be guaranteed a 50/50 split, that it resulted in children being ‘shuttled’ across the continent, and that it didn’t give judges appropriate guidance (Overington, 2009a).  Fathers’ groups said the new laws didn’t deliver what was promised (Overington, 2009b), suggesting they had no illusions about the failure to introduce a 50/50 presumption, and Wayne Butler, secretary of the Shared Parenting Council (a campaigners’ umbrella organisation), said fathers were alarmed the laws would be repealed because they were ‘an incredible improvement on where we were prior to the amendment… The vast majority of cases are being settled well before they get to the Family Court for a determination.  People don’t read about the thousands of cases that are being settled amicably’.

An official evaluation of the reforms was commissioned from the Australian Institute of Family Studies (AIFS) by John Howard’s Conservative Government  (Kaspiew, Gray, Weston, Moloney, & Qu, 2009); its findings were mixed, which has enabled their misrepresentation on both sides of the debate.  Because the four main reforms were introduced simultaneously, it is impossible to say with confidence which led to which specific effect, and there is no evidence that judges were making decisions after 2006 significantly different from those they would have made before, though judges themselves suggested that the decision-making process had been affected.

A major concern was that imprecision in the way the new law was written would lead to confusion between equally shared parental responsibility and equally shared parenting time, encouraging misinformed fathers to expect 50/50 custody – exactly the error the Norgrove panel made, and a problem which could be avoided through clearer drafting and publicity.  Some lawyers expressed concern about a lack of resources, leading to delays, more protracted and drawn-out processes, and inconsistencies in judicial approaches to case management.  Numerous lawyers said the LAT process increased delay and costs and that it required more preparation and more court hearings – potentially causing greater conflict.  Delay, however, is a problem in other jurisdictions, and had been a problem in Australia before the reforms; some of the causes, such as problems in recruiting and retaining staff or the complexities of legislation and the two-court system were local difficulties specific to Australia and attributable to the Less Adversarial Trial procedure, not to the presumption of shared parental authority.

On the positive side, the report found there had been a shift away from automatic recourse to legal solutions with more cases resolved through mediation and only the most complex still reaching court.  Fathers were becoming more involved and sole maternal residence orders had fallen from 65.2% to 47.8%; the proportion of children enjoying shared care had increased from 9% to 17%, though that was still lower than in comparable countries.  The total number of children’s matters applications actually fell by a dramatic 32%, from 18,752 in 2005/06 to 12,812 in 2010/11.  Shared parenting was declared to be a success; 81% of parents with shared care stated the arrangements were working well.

The researchers found the reforms had also improved the way the system was identifying and responding to families where there were concerns about violence, child abuse and dysfunctional behaviours.  The amendments were clear that the presumption of shared parental responsibility need not apply where there was violence or abuse, and there was no evidence to support the claim that they placed mothers or children at greater risk, or that the courts were not taking evidence seriously.

What happened next was political.  In November 2007 a Labor government came to power under Kevin Rudd.  Supported by the Green Party, Labor sought to roll back the 2006 legislation, citing as an excuse ‘safety concerns’: it is invariably the case that any provision to support fathers’ greater involvement is presented as exposing women to a greater risk; the hallmark of the anti-shared parenting crusader is the catch-phrase ‘where it is safe’.  Labor dismissed the AIFS report and commissioned a new one from known opponents of shared parenting, feminist psychologist Jennifer McIntosh and former family judge Richard Chisholm (McIntosh & Chisholm, 2008).

Their study starts with the unproven presumption that shared care arrangements, because they require communication between conflicted parents, exacerbate conflict and expose children to higher levels of stress.  Nobody disputes that parental conflict can be harmful to children and that it is therefore better if parents avoid conflict, and better for parents to agree than to have a solution imposed on them.  Given that fathers prefer shared care and mothers prefer the control that sole residence gives them  (Kelly J. , 2006), it is inevitable that court-imposed shared care can lead to conflict; the onus is on the parents to put their children’s interests first.  Evidence shows shared parenting reduces conflict and is beneficial to children even where parental conflict continues.  Unfortunately mothers are influenced by the cultural prescription that they should be the primary carer, and that if they are not, there must be something wrong with them; McIntosh shows that at the end of a year’s shared custody some mothers feel their parenting has been called into question.

McIntosh confined herself to consideration of two Australian studies; in the first she found that children of conflicted parents were more likely to exhibit clinical anxiety than the general population (21% vs 14%).  She found they were more likely to be adversely affected if their parents were poorly educated and ‘immature’ – not itself a surprising finding.  In the second study she found a larger number of clinically anxious children (28%) and a correlation between high levels of parental conflict and an inability to cooperate – again, not remarkable.  Her methodology, however, was significantly flawed:

  •          the studies were ongoing and the data were thus incomplete;
  •          the sample sizes were small, respectively 181 and 111;
  •          what she called shared parenting most people would call maternal custody with generous contact;
  •          these were the most conflicted members of an already conflicted group: what McIntosh found was little more than a tautology, and the majority of children in each sample showed no signs of anxiety above the norm; she disregarded those families in which shared parenting was working;
  •          the methodology shows only an either/or effect – there was no indication whether these children had slightly exceeded the threshold or had passed it by a wide margin;
  •          Most damningly, McIntosh’s control group was the general population, most of whom are in intact families: of course she found a correlation.  A more objective study would have compared the shared residence sample with one in sole maternal custody.

In a later study on overnight staying contact (McIntosh, Smyth, & Kelaher, 2010) McIntosh repeated these errors, cherry-picking research, selecting studies which demonstrate negative effects and rejecting the more numerous reports which show a neutral or beneficial effect; she drew conclusions unsupported by the data and interpreted scores within the normal range as negative, depending on whether the children were in intact families or in separated ones; only 11 children had anything resembling a shared care arrangement – far too small a sample to be representative.  None of the significant negative outcomes was based on measures that had demonstrated acceptable validity or reliability, and all the data was derived from only one parent, not both.  A growing group of scholars are agreed that McIntosh’s work provides no reliable basis to support custody policy, recommendations, or decisions (Cashmore & Parkinson, 2011) (Lamb M. E., 2012) (Ludolph & Dale, 2012) (Nielsen, 2013b) (Nielsen, 2013c) (Nielsen, 2013d) (Parkinson & Cashmore, 2011) (Warshak, 2012).  Her advice that overnight staying contact should not begin before the age of 2, in particular, is dangerous: once a pattern of limited contact with no overnight stays is established it is difficult to overturn, and contact is more likely to diminish than increase, often leading to a complete cessation.

McIntosh and Chisholm assumed that if outcomes for children were poor it was the result of the new legislation and not the pre-existing dispute.  The objections raised to shared parenting – e.g. that children suffer where parents have mental health problems – were not unique to the new legislation and would still have applied had the new law not been passed.  Contrary to the study, shared parenting need not necessarily increase contact between parents and does not put mothers at greater risk of violence from fathers; there is no established link between shared parenting amendments and domestic violence and indeed research has shown that shared parenting successfully reduces the incidence of violence (Halla, 2011).  According to the AIFS evaluation shared parenting involved fathers in higher costs and in reduced working hours, so the argument that fathers favour shared parenting because it reduces child support payments was fallacious.  Court orders were still down to the discretion of the judge, so it was not the case that ‘one-size-fits-all’; prior to the new legislation the courts were far more vulnerable to the ‘one-size-fits-all’ allegation.  The new law did not favour fathers – most were still getting a raw deal – and the reform did not go far enough.

Norgrove looked exclusively at the McIntosh/Chisholm reports and ignored the huge body of evidence supportive of shared parenting.  He misinterpreted the Australian legislation which requires the court to make a factual assessment of whether the child would benefit from a meaningful relationship with both parents but does not require the court to try to achieve this.  Norgrove responded to the widespread concerns about proposed changes to the Children Act but offered no evidence to justify them.  His belief that introducing a presumption of shared parenting would incur an ‘unacceptable risk of damage to children’ derived from a solitary submission to the Review by Professor Helen Rhoades, chair of the Australian Family Law Council, which, unlike every other submission, was granted the status of an annex to the Final Report.  Rhoades cited as evidence for her view both the AIFS study (which proves nothing of the sort) and a study by Richard Chisholm into violence which offers only personal opinion and no evidence whatsoever for any damaging effect of shared parenting (Chisholm, 2009).

Ignoring the extreme cases = bad law dictum, she also cited a single case in which a mother had flouted court orders to return to Tasmania children she had taken to New South Wales (Partington and Cade, 2009).  She accused the father of sexually abusing his children, and though she was initially still ordered to return, successfully appealed.  The case doesn’t prove the point supposedly being made, and it isn’t clear that it would have been tried any differently before the 2006 legislation.  Another example often used to back the anti-shared parenting stance is the tragic case of Darcey Freeman who was thrown by her father from Melbourne’s Westgate Bridge on 29th January 2009.  Arthur Freeman then drove straight to the Commonwealth Courts Building and handed himself in.  He had initially shared the custody of his 3 children but the case had gone to court where the previous day he had been awarded minimal contact.  In court his partner said, ‘He felt that he’d lost them; he was so helpless.  He enjoyed being a father of shared care; he loved his children.  He loved being part of their life.  He felt they had been taken away from him’.  Freeman claimed he had been mentally impaired, but the prosecution alleged spousal revenge.  Feminists claimed he had been awarded shared residence and used the case to argue for the roll-back of the 2006 reforms.  In reality the reforms had nothing to do with the case which had been judged according to the old legislation.  Eight months earlier 18-month-old Oliver Garcia had been killed by his mother in a similar jump from the same bridge.  On the first anniversary of Darcey’s death, Attorney General Robert McClelland cynically released 3 anti-shared parenting reports, including one by Richard Chisholm, recommending the dismantling of the 2006 reforms.

Inevitably the few shared parenting cases that didn’t work dominated the media, which ignored the many that did; opposition to the new laws was vocal and well-funded.  In 2010 Kevin Rudd was replaced as Prime Minister by Julia Gillard whose election had been promoted by Emily’s List, an international far-left feminist group dedicated to putting its members into positions of government; Gillard was a founder member of the Australian chapter and had written its constitution.  In November 2011 the Senate narrowly approved the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011; this did not alter the shared responsibility presumption but, by introducing a new and wider definition of family violence and a new prioritisation of protection from harm over the benefit of having meaningful relationships with both parents, it effectively negated the 2006 legislation.  The Bill was also retrospective, so it undid shared residence arrangements in cases largely heard but not yet finalised.  Years of careful research were overruled by the anti-father agenda: not one case study or item of evidence was presented during the debate to support the feminist position.  Fathers’ groups claimed the Bill would reverse a significant decline in the abuse of children (including homicides) which followed the 2006 legislation; they said the legislation was introduced under the pretence of protecting children from abuse when the reality was that since 2006 children had been at less risk of violence than ever before.  As the new legislation encouraged the use of domestic violence allegations to withhold contact, and drastically widened the definition, lawyers warned that litigation would skyrocket and courts be swamped.  Ironically one of the excuses used to roll back the 2006 Act was the false claim of increased litigation.

In Sweden and Australia the reasonable idea that a child’s interests are best served by a continuing relationship with both parents was replaced by the feminist dogma that shared custody represents an unacceptable risk of harm both to the child and to the ‘primary’ parent.  The fact there was a carefully orchestrated campaign is not evidence children were actually being harmed, and the Interim Report offered none.  In fact there is good evidence that where a court imposes shared parenting arrangements, conflict can be reduced; there is no evidence whatsoever for any harmful effect.  The opposition to shared parenting is ideological – a fact to which the Norgrove panel seemed indifferent – and the criticism is no more than propaganda.

Yet the panel insisted, ‘Evidence [from Australia] has shown increased litigation 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’, leading to an expectation of equally shared time.  Not a word of this was true and Norgrove presented no evidence either that this was the case or that it would be harmful if it were.  The evidence proves the opposite: litigation rates fell and kept falling; there was no suggestion whatsoever that children had been damaged – that was a fabrication.  Norgrove further claimed that in a quarter of cases Australian judges were ordering shared care where there had been a history of violence; once again, this claim was a fiction.  These allegations against the Norgrove reports are very serious indeed and show clear evidence of partiality.

Professor Patrick Parkinson, president of the International Society of Family Law and architect of the 2006 Australian reforms 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’ (Parkinson P. , 2012a).  Reporting subsequently to the UK Government he repeated his view that Norgrove’s claims ‘had no little or no factual foundation’ and observed that no academic disagreed with him (Parkinson P. , 2012b).  With breath-taking hypocrisy Parkinson concluded that Parliament was right to reject a presumption of equal time, but offed no argument or evidence in support of the assertion, listing only those reasons why it might not work in all cases, not why it should not be the starting point for negotiation.  More disappointingly, Parkinson made no attempt to explain why the Norgrove reports had been so intellectually dishonest.

 

Works Cited

Bjarnason, T., & Arnarsson, Á. (2011). Joint Physical Custody and Communication with Parents in 37 Western Societies. Journal of Comparative Family Studies, 42, 871–890.

Cashmore, J., & Parkinson, P. (2011). Parenting arrangements for young children: Messages from research. Australian Journal of Family Law, 25, 236–257.

Chisholm, R. (2009). Family Courts Violence Review.

Family Justice Review Panel. (2011b). Family Justice Review: Final Report. Ministry of Justice; Department for Education; Welsh Assembly Government.

Halla, M. (2011). The Effect of Joint Custody on Family Outcomes. Journal of the European Economic Association.

Hansard. (2006b, March 2).

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

Kelly, J. (2006). Children’s Living Arrangements Following Separation and Divorce: Insights From Empirical and Clinical Research. Family Process, 46(1).

Lamb, M. E. (2012). A wasted opportunity to engage with the literature on the implications of attachment research for family court professionals. Association of Family and Conciliation Courts.

Ludolph, P. S., & Dale, M. D. (2012). Attachment in child custody: An additive factor, not a determinative one. Family Law Quarterly, 46, 1-40.

McIntosh, J. E., Smyth, B., & Kelaher, M. (2010). Parenting arrangements post-separation: Patterns and developmental outcomes, Part II. Relationships between overnight care patterns and psycho-emotional development in infants and young children. In J. McIntosh, B. Smyth, M. Kelaher, Y. Wells, & C. Long, Post-separation parenting arrangements and developmental outcomes for infants and children: Collected Reports (pp. 85–168).

McIntosh, J., & Chisholm, R. (2008). Shared Care and Children’s Best Interests In Conflicted Separation – A Cautionary Tale from Current Research. Australian Family Lawyer, 20(1), 3-16.

Nielsen, L. (2013b). Shared residential custody: A recent research review (part two). American Journal of Family Law, 27, 123–137.

Nielsen, L. (2013c). Infant and toddler overnighting after parents separate: A review of research.

Nielsen, L. (2013d). Woozles: Their role in custody law reform, parenting plans, and family court. Psychology, Public Policy, and Law.

Öberg, B., & Öberg, G. (2011). Skiljas – men inte från barnen (2nd ed.). Stockholm: Mardeld.

Overington, C. (2009a, June 3). Family Law experts slate shared-parenting. The Australian.

Overington, C. (2009b, June 4). Fathers still chasing equal time with children. The Australian.

Palmer, A. (2011, April 6). Britain’s Family Justice system isn’t working. Sunday Telegraph.

Parkinson, P. (2012a). Meaningful Reform to the Children Act 1989: learning from the Australian experience. Family Law Presentation. London: Centre for Social Justice & International Family Law Group.

Parkinson, P. (2012b). Written evidence. Justice Committee – Pre-legislative scrutiny of the Children and Families Bill.

Parkinson, P., & Cashmore, J. (2011). Parenting arrangements for young children: A reply to Smyth, McIntosh and Kelaher. Australian Journal of Family Law, 25, 284–286.

Partington and Cade, (No 2) [2009] FamCAFC 230 (Australian Court of Appeal 2009).

Turunen, J. (2013). Shared Physical Custody and Children’s Experience of Stress. Stockholm: Stockholm University Demography Unit (SUDA), Department of Sociology.

Warshak, R. (2012). Securing children’s best interests while resisting the lure of simple solutions. Parenting in practice and law: Terminology, rhetoric, and research, conference conducted at the Center for the Study of Child Development. Haifa, Israel.

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