Mitigating Incentive

 

 

It is deeply troubling that in its response to the Family Justice Review the government lays out plans to introduce legislation which will, in effect, undermine [the welfare] principle by inserting an additional statement in law.  This will fundamentally compromise the ability of the family courts to focus on the breadth of issues that contribute to a child’s ongoing welfare after family separation.

Single parents’ lobbying organisation Gingerbread (Gingerbread, 2012).

 

 

In the 1960s and ‘70s feminism had preached against gender stereotypes and argued for the expansion of women’s roles beyond those of wife, housekeeper and mother.  Equally, feminism wanted men to become more actively involved in taking responsibility for their children, a call to which men eagerly responded.  As divorce rates soared feminism encountered a problem: how to ensure mothers retained their sole-custodian status without appearing to endorse the idea of biological predestination.  The solution was the primary carer ideology and the Lone Parent Model: award sole custody as a ‘prize’ to the parent who has provided the bulk of the child care and exclude the other.

The Model has dominated legislative and fiscal policy ever since.  It demands that one parent be regarded as superior and essential while the other is inferior and optional.  It guarantees that parents cannot be treated as equals, and outcomes can never be even-handed.  One justification is purely practical: a violently tilted playing-field ensures there’s always a winner; Lord Askwith had justified the primacy of fathers thus,

[We] hold no brief against equality in status between man and woman.  It is on practical grounds alone that the proposal is objectionable (Askwith, 1923).

What we have described has been a massive revolution.  At the start of our period the basic societal unit was the married family: two parents working together harmoniously and cooperatively for the benefit of their children and society.  By the end of the period the base unit of society has become the individual: cooperation is ridiculed and marriage has become a minority interest, a matter of individual preference, not of parental or social responsibility.  A justice system which once fought earnestly to protect the ‘sanctity’ of marriage now exploits family breakdown ruthlessly.

Because they are adversarial and not inquisitorial, contact and residence hearings all too often focus on the dispute – i.e. what the parents are disagreeing about – rather than on the needs of the child.  In the winner-takes-all culture this results in the courts apportioning blame in parental disputes and acting as a superordinate parent by arrogating parental authority to themselves.  To ensure the courts apportion blame to the other parent, parents are forced to employ the most dishonest strategies.  John Bowlby’s theories are still used to justify giving the custodial parent dominant authority and implementing contact orders which impose a limit on contact of only a few hours every couple of weeks for the other parent, restrict bonding, and make the continuance of healthy family relationships impossible.  Great harm is done a child when it is removed from an attachment which is at the top of the hierarchy but which is regarded by the justice system as expendable and placed in the permanent care of a figure to whom the child has a secondary attachment, but who is regarded by the system as sacrosanct.  As Karen Woodall says, ‘we rip kids away from [fathers] without a second thought because in the social policy world we live in it is mothers who are the proper carers’.  The belief that men are always the providers and women the carers is deep-seated within British culture; we must reject these stereotypes before post-separation parenting can become fully child-focused,

Part of the problem is that we’re still clinging to the idea that a child without its mother is going to be damaged.  We need to move beyond that.  After separation children do best if both parents are involved.  Many mothers who share parenting say they feel they’re being judged for failing their children (McDonald, 2010).

There are those who support shared parenting but do not agree that a legal presumption is the way to achieve it.  Karen Woodall wrote in 2011, accepting the official statistic, ‘In my experience, those ten percent of families that end up in the family courts battling over their children are facing more complex problems than a presumption of shared care can remedy’ (Woodall, 2011).  The danger of this approach is that it risks aligning with those who oppose a legal presumption for the ‘wrong’ reasons, though Woodall strongly refuted the standard anti-shared parenting position, and demonstrated what a false claim it was, writing of an OXFLAP report funded by the Nuffield Foundation (Fehlberg, Smyth, Maclean, & Roberts, 2011), ‘The Nuffield report also says that evidence from Australia shows that presumption of shared care prioritises father’s rights over the child’s needs and that it also means that mothers are less likely to disclose violence and abuse.  It is at this point that I really start to hear warning bells ringing’.

A principal risk of a legal presumption is that it can lead fathers to believe they have a new right to automatic 50/50 shared residence and to make applications accordingly.  Such erroneous beliefs are often encouraged by inaccurate and ill-informed media reporting.  Woodall’s view was simply that a legal presumption was a red herring and would make little difference in practice,

Presumption or not, is not the question.  The real question that the UK has to get to grips with is the lack of support for parents as they go through separation, a lack which in my view is scandalous… Until the services to support separating families are reconfigured around the needs of both parents, until we accept that children benefit from meaningful relationships with their mothers and fathers and until we end the ridiculous stereotyping of men and women in our family services, presuming shared care or not, will not change a thing.

This is not quite the experience of jurisdictions which have introduced a legal presumption.  What all jurisdictions, including ours, need is a shift in culture – the recognition that children need continuing relationships with both parents if they are to develop successfully.  Such a shift requires kick-starting, and a presumption of shared parenting can provide that kick.  There may be alternative ways to trigger cultural change, but they are not on the table, while the legal presumption has been.  By 2014 Karen Woodall had modified her position, persuaded by Vincent McGovern of FNF of the symbolic value of a legal presumption for fathers.  She believes, however, that at the heart of the injustice are the arrangements surrounding Child Benefit, and it is possible that reform of this legislation could provide a similar impetus to cultural change but, while it is admitted to be discriminatory, it is considered by the courts to be justified on economic grounds and no reform is on the horizon.  Woodall acknowledges the link between reinforcing support for shared parenting through the Children Act and cultural change, ‘A strong message in the Children Act, that establishes the need for children to have a meaningful relationship with both parents, will set an expectation that all parents will aim towards that goal.  In many ways, it’s about changing the environment in which parents make choices’ (Centre for Separated Families, 2012).

But we also think that the government needs to go further.  We believe that it is vital that they invest in training all of the services that families come into contact with after separation.  Unless family mediators, CAFCASS officers, social workers, child support professionals, children’s centre staff and all the other individuals and agencies that parents come into contact with start to work outside the lone parent paradigm, children will continue to miss out on the vital relationships that allow them to grow and develop into psychologically secure and fulfilled adults.

Even if shared parenting is accepted as the best post-separation arrangement for the care of children – recognising that it is always a compromise, recognising that it requires certain conditions to be met if it is to work – the question is how best to implement it.  The call from many fathers’ groups for a presumption written into the Children Act itself is actually a relatively new development and a shift from an earlier demand for a presumption of ‘reasonable contact’.  Fathers4Justice, for example, had called for a legal presumption for contact to be incorporated into the 2004 Children Bill, though their Blueprint also variously called for a presumption of parenting time, a presumption of shared care and a presumption of equal parenting with a 50/50 starting point (O’Connor, Burch, & Cox, 2005).  The idea of a legal presumption had some political support from the Conservatives, whose 1996 Family Law Act required the court to have particular regard to–

the general principle that, in the absence of evidence to the contrary, the welfare of the child will be best served by his having regular contact with those who have parental responsibility for him and with other members of his family; and the maintenance of as good a continuing relationship with his parents as is possible.

The Labour Government never enabled the Act on the grounds that pilots indicated it would not achieve the objectives desired (see Chapter Twenty-Four).  The Conservatives under Michael Howard also adopted the principle of a ‘rebuttable presumption of reasonable contact’, expressed in Early Day Motion 128, launched by Theresa May on 18th May 2005 and signed by 58% of MPs including David Cameron.  In a brief 2009 collaboration with CAFCASS, Families Need Fathers proposed a modest adoption of shared parenting,

We should consider each child’s needs and encourage the maximum interaction with both parents as a default – considering equal parenting time initially – unless there is a very good reason to do otherwise (Families Need Fathers; CAFCASS, 2009).

Inevitably this sensible suggestion met with immediate and intense hostility; those two habitual adversaries of shared parenting, Liz Trinder and OXFLAP’s Joan Hunt, pretended that the welfare principle must be the only one – and not merely the paramount one – which guides a court’s decision, and mischievously misrepresented the proposal,

This would have the effect of introducing a presumption of a 50/50 division of the child’s time.  The law, however, currently states that it is the welfare principle (and the welfare checklist including the child’s wishes and feelings) that must determine the decisions of the courts and therefore the recommendations that Cafcass officers make to the courts.  It does not include any presumption of shared parenting or a 50/50 presumptive starting point (Hunt & Trinder, 2009).

As a result of this challenge CAFCASS capitulated.  Iain Duncan Smith’s Centre for Social Justice went further than FNF: in their report, Every Family Matters they proposed incorporating an additional clause into the Children Act itself.  The clause was not a prescriptive presumption, and so cannot be seen to conflict with the welfare principle, but it nevertheless gave the court important guidance which would otherwise be absent from legislation; it was subsequently overshadowed by the Family Justice Review and by the Government’s own proposals for encouraging shared parenting:

In determining if, when and how to make an order providing for a parent to have a substantial involvement in the life of the child, the court shall in particular consider the benefit to the child, and the reasonable practicality, of contact of sufficient frequency and duration that the parent is able to have a substantial involvement in the child’s day to day routine and activities; this may be in the form of a joint (or shared) residence arrangement.  (Centre for Social Justice, 2009)

Other MPs have striven to get shared parenting onto the statute book – Charlie Elphicke and Brian Binley in 2010, Adrian Sanders in 2012 and George Galloway in 2013 – but neither Labour nor the Coalition were having any of it,

The Government understands that some people believe a legal presumption of contact is needed to stop the courts from denying contact to perfectly fit parents without good reason.  However, the Government does not believe a presumption of contact could ever be the solution in contact cases (Labour, 2007).

As we saw in Chapter Thirty-One, what finally went forward into legislation was so grotesquely compromised that it actually reduced the inadequate ‘contact’ fathers were already getting to mere ‘involvement’.

When jurisdictions debate legal reform to enable shared-parenting – like Spain in 2013 or Canada in 2014 – the anti-shared parenting lobby will act with breath-taking dishonesty.  A typical example came from Samantha Tornello, student at the University of Virginia whose tutor is Robert Emery, a well-known opponent of a legal presumption (Tornello, et al., 2013).  She argued that allowing infants to stay overnight caused attachment insecurity.  The press responded with lurid headlines like the Daily Mail’s, ‘Nights away from mum “leave babies less secure”’ (Daily Mail Reporter, 2013).  Immediately the report was being used in Spain to argue against overnight contact.  Close examination of the report’s methodology was vital; Edward Kruk identified that ‘The purpose of this article is to derail law reform efforts throughout the US (and beyond)’ and dismissed the study as ‘junk science’,

Shared parenting adversaries… are unable to dispute the overwhelming evidence in favour of SP in regard to children’s well-being, they have turned to the argument that infants and very young children are harmed by shared parenting.  And once fathers are marginalized from their children in the early years, their chances of establishing a shared parenting relationship later are very slim (Kruk, 2013).

Kruk pointed out the sample of fragile, unmarried/non-cohabiting, inner-city, ethnic minority, low income, high-risk families in which fathers’ roles were peripheral to begin with wasn’t representative and relied entirely on the mothers themselves for accounts of infant attachment.  Richard Warshak accused Tornello of a lack of objectivity (Warshak R. A., 2014).  Linda Nielsen warned, ‘It would be inappropriate and ill advised to apply the data on mother-infant attachment from this study to the general population of separated parents’ and pointed out that Tornello based her case on minor differences in just one out of 14 measures of well-being (Nielsen, 2013).

The study claimed a large sample of 5,000 families, but only 51 had any overnight contact and very few of those, if any, amounted to sharing parenting.  Tornello tried to show that overnights with fathers specifically were harmful, not overnights with non-resident parents, and dishonestly represented fathers as ‘non-resident’ even when they had 256 nights out of 365, raising the question of why the infants spent so little time with their mothers.  Her idea of ‘frequent overnights’ was only one night per week, so her study wasn’t of shared parenting at all.  The findings of a study into true shared parenting arrangements would have been very different.

There is ample academic support for a legal presumption of shared parenting; none of it was considered by Norgrove.  The Brinig and Allen study cited in Chapter Two demonstrated that the principle factor determining which partner files for divorce is the expectation of child custody: the probability that a wife will get custody increases by more than seven times the likelihood she will file for divorce (Brinig & Allen, 2000).  Following these findings Brinig and Allen made this recommendation to law makers,

If it is custody outcomes that most influence divorce filings, changes in custody rules (or their likely outcomes) rather than in divorce grounds, should most shape the patterns of both marriage and divorce.  In particular, this could take the form of a presumption of joint custody… An appropriate custody rule mitigates the incentive for one party filing for the purpose of gaining unilateral control over the children and therefore the other spouse.

Brinig and Allen further observed that wives suffer financially when children come into a family, because the husband, usually the main wage-earner, renegotiates the marriage in the light of the mother’s now poorer bargaining position (Fineman, 1995).  If she divorces, however, she can spend the child support received from the father as she pleases, without his interference, and ‘make most, if not all, of the major decisions regarding the child’.  She is also able to regulate the father’s contact (Levmore, 1998) and, if she chooses, alienate the child against him (Lobsenz, 1971).  ‘Having custody of children may even be a way of asserting control over a noncustodial parent, either personally or through the child support that usually goes along with the children’.  Once the wife has made her decision to end the marriage, it is almost impossible for the husband to persuade her to stay.

It would follow from the Brinig/Allen study that if the expectation of custody were to be eliminated from the divorce process – by instituting a legal presumption of shared custody – the divorce rate would fall.  In practice this is precisely what happens when jurisdictions introduce such a presumption.  One study found that US states which more often award joint custody ‘have shown significantly greater declines in divorces… compared with other states’ (Kuhn & Guidubaldi, 1997).  Rates of divorce fell four times faster in such states compared with those in which joint custody was relatively rare.  This also appears to be the experience in Australia following the introduction of shared parental responsibility legislation there (Qu & Weston, 2011).

Martin Halla, Associate Professor of Economics at the University of Linz, studied the effects of the development from sole mother custody to joint custody in US states (Halla, 2011).  He found that sole maternal custody ensures all the gains of a marriage – particularly children – are disproportionately won by the mother; this means that having children is a risky strategy for men: fathers can end up paying out more via child support than a child costs them within marriage and still get nothing in return.  Joint custody, on the other hand, shifts some power back to the father, giving him more bargaining power and balancing the relationship.

With joint custody men, who tend to be on the short side in the marriage market and typically more reluctant to marry, are more prepared to invest in children and have a greater incentive to marry; thus the marriage rate rises (the slight drop in women’s incentive to marry is insignificant because of their pre-existing greater enthusiasm for marriage).  Halla found no effect for 5 years and then an increase rising to 9.2% after 17 years.  There is a corresponding decrease in extra-marital births and an increase of 14% in marital births, i.e. in spouses’ willingness to invest in children.  Halla also found an increase in re-marriage rates of divorced women, a decline in the rates of abortion, a decline of a fifth in domestic violence and a 9% fall in male suicide, explained by the increase in male bargaining power and wellbeing.

Note that these effects are the opposite of those associated with feminism and the liberalisation of matrimonial and child law; note also the scale of the effects compared with the seemingly minor change in legislation.  Jurisdictions which reject a legal presumption of shared custody are condemned to repeat the cycle of sole maternal custody and fatherless children; only where it is embodied in law does shared parenting also become part of the culture.  It is in the light of this understanding that we should seek to explain the extraordinary opposition to a presumption of shared parenting.  It isn’t merely that it would take unilateral control away from mothers; it would also undermine the very foundation of modern divorce, and halt the otherwise inexorable rise in family litigation and intervention.

 

Works Cited

Askwith, L. (1923). Report from the Joint Committee of Lords and Commons to consider the Guardianship of Infants Bill given a second reading on 26 March 1923.

Brinig, M. F., & Allen, D. W. (2000). These Boots are Made for Walking: Why Wives File for Divorce. The American Law and Economics Association.

Centre for Separated Families. (2012, May 09). Government support for shared parenting is the right way forward.

Centre for Social Justice. (2009). Every Family Matters: an in-depth review of family law in Britain. Centre for Social Justice.

Daily Mail Reporter. (2013, July 22). Nights away from mum ‘leave babies less secure’: New findings could affect custody rulings for young children. Daily Mail.

Families Need Fathers; CAFCASS. (2009). Guidance for CAFCASS case officers on shared parenting.

Fehlberg, B., Smyth, B., Maclean, M., & Roberts, C. (2011). Caring for children after parental separation: would legislation for shared parenting time help children? University of Oxford, Department of Social Policy and Intervention, Oxford.

Fineman, M. (1995). The Neutered Mother.

Gingerbread. (2012, February 6). Government plans will compromise children’s best interests, say family charities. Retrieved from Gingerbread.org.uk.

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

Hunt, J., & Trinder, L. (2009). The new Guidelines on Shared Parenting produced by FNF: an initial response.

Kruk, E. (2013, July 23). Email from Edward Kruk to Kevin Gardner and Peter Tromp of the Platform for European Fathers.

Kuhn, R., & Guidubaldi, J. (1997). Child Custody Policies and Divorce Rates in the US. 11th Annual Conference of the Children’s Rights Council October 23-26, 1997. Washington, D.C.: Children’s Rights Council Washington, D.C.

Labour. (2007, October 23). Response to Fathers 4 Justice petition.

Levmore, S. (1998). Joint Custody and Strategic Behavior. Indiana Law Journal(73), 429.

Lobsenz, N. M. (1971). How Divorced Young Mothers Learn to Stand Alone. Redbook , 138, 140.

McDonald, L. (2010, September 28). The children who have two homes. The Independent.

Nielsen, L. (2013, August 05). “Overnight Custody Arrangements” Article by Tornello, Emery et al.

O’Connor, M., Burch, G., & Cox, M. (2005). A Blueprint for Family Law in the 21st Century: the case for urgent, radical reform. Fathers 4 Justice.

Qu, L., & Weston, R. (2011). Trends in couple dissolution: An update. Australian Institute of Family Studies.

Tornello, S., Emery, R., Rowen, J., Potter, D., Ocker, B., & Xu, Y. (2013, August). Overnight Custody Arrangements, Attachment, and Adjustment Among Very Young Children. Journal of Marriage and Family, 75(4), 871-885.

Warshak, R. A. (2014, February). Social Science and Parenting Plans for Young Children: A Consensus Report. Psychology, Public Policy, and Law, 20(1), 46–67.

Woodall, K. (2011, May 30). Shared Parenting: getting it right for our children. Retrieved from karenwoodall.wordpress.com.

Advertisements