This is the first of a two-part post.
In 2009 the Conservative MP Henry Bellingham was heading up a review into the family justice system. He was looking, inter alia, at giving cohabitees equal property rights on separation to married couples, greater rights for grandparents to seek contact with children, and reform of relocation law.
I was first made aware of this review when, on behalf of Fathers4Justice, Nadine O’Connor and I attended a meeting about child support with Bellingham’s colleague Maria Miller, and she suggested we also meet with him.
Bellingham was remarkably open-minded and offered to meet with any interested parties; the first meeting with a fathers’ group was apparently with a small group of men who had given up on Fathers4Justice and briefly called themselves the Family Law Society.
In November 2009 Bellingham met with the splinter group New Fathers 4 Justice. They had a team working on reform led by Mark Harris, author of Family Court Hell, and Nigel Ace, a veteran campaigner. It was Ace’s MP, Liam Fox, who arranged the meeting. Amongst other reforms they argued for the removal of benefits from mothers who obstruct contact. As Rich Adams, a New F4J member, admitted, ‘We might not have had the most intellectual approach but we certainly made sure we got our point across every time.’
Not to be outdone by a rival group, through their local Conservative Parliamentary candidate, Caroline Nokes, the O’Connors organised a meeting with Bellingham on 8th April 2010 which I also attended. After an interesting and constructive discussion Bellingham presented us with 10 pledges which he said had the full support of David Cameron; he recited the pledges and we wrote them down. We were struck by how closely these pledges seemed to mirror the thinking of fathers’ groups, unaware that they had actually been drafted by New F4J.
Bellingham also issued two caveats: for the pledges to have any hope at all of becoming policy the Conservatives would need to win the forthcoming General Election outright and Bellingham would need to become the minister in charge. Bellingham can be seen making the same caveats to New F4J in a filmed speech posted on YouTube. In the event, of course, the Conservatives were forced to cobble together a coalition with the Lib Dems and Bellingham was sent to the Foreign Office; family justice became the responsibility of the lightweight and now forgotten MP Jonathan Djanogly. There was never any possibility that the pledges would become reality.
Nevertheless, the mood after our meeting was jubilant: the extraordinary pledges represented the fulfilment of ten long years of campaigning. Matt was upbeat and Nadine was in tears. They genuinely believed the end of the campaign was in sight. As we left Portcullis House and crossed the Thames under the gaze of Boudicca we discussed our next moves and the possible winding-up of Fathers4Justice, enabling us to move forward into other political projects.
These are the pledges Bellingham made:
- A clear definition of contact so couples know what the likely outcome of the case may be, making them less likely to litigate.
- A legal presumption in favour of automatic shared-contact in the context of joint parental responsibility.
- An emphasis on early interventions and mediation.
- Enforceable contact orders including the withdrawal of benefits from parents withholding access.
- Grandparents to have automatic rights of access to court.
- A plan to work with the Department of Children, Schools and Families to ensure CAFCASS becomes more efficient and is able to devote more time to public law cases and child protection issues.
- A pro-active Judiciary with a more efficient handling of cases.
- A wide consultation with all interested groups with an interim report published by the Autumn of 2010.
- A commitment to reducing the cost to UK PLC caused by family breakdown and the litigation of family disputes which we believe is intolerable.
- The most significant consequence of which will be to allow children to reach their true aspirations and potential.
From my notes of the meeting I see that Bellingham also agreed to look at the Australian experience of family hubs, with a view to running early mediation from them; to improve judicial continuity; to introduce a zero-tolerance approach to obstruction of contact and false allegations; and to introduce better enforcement of contact, paid for, intriguingly, by local authorities.
The Equal Parenting Alliance also met with Bellingham on 10th April 2010 and won from him these commitments:
- Family Courts will be made open, with no caveats. They will be brought into line with the Crown and Magistrates Courts.
- There will be, in law, a presumption that each parent is of equal value, i.e., has equal status, resident parent or not.
- There will be a greater emphasis on mediation with the aim of keeping far more cases out of the court system. If a case goes to court, agreements made at mediation will be taken into account.
- The issue of Family Law reform will be a priority.
Following our meeting Caroline Nokes published a piece on the Romsey Conservatives website, which quoted Bellingham, ‘I particularly welcome the attitude of Fathers4Justice who approached the matter using dialogue and constructive engagement’ (Romsey and Southampton North Conservatives, 2010).
A report was also published in their local paper headed ‘Tory backing for family law change’ (Southern Daily Echo, 2010). The O’Connors were photographed in matching pinstripes with Nokes; behind them the O’Connors’ children Archie and Phillippa played on a climbing frame with Nokes’ daughter Tabitha.
Relations between the O’Connors and Nokes appear still to have been cordial in July 2011 when Nadine thanked Nokes for organising a meeting between herself and a group of MPs.
In 2010 the Labour Government had launched their own review of the family justice system and when the Coalition came to power they adopted this rather than Bellingham’s. The reason for this was probably pragmatic: the findings were more likely to have cross-party support, but it did mean the report was delayed beyond the Autumn, as promised.
Fathers4Justice made a 1,000 page written submission, mostly consisting of pre-existing documents, not all of them particularly relevant, and an oral submission attended by myself, the O’Connors and ‘the most expensive dentist in Britain’, Nadim Safdar.
The Interim Report was published in March 2011; on the issue of shared parenting after separation it warned 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 this vague 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 (Family Justice Review Panel, 2011a).
Writing in The Telegraph, journalist Alastair Palmer interpreted, ‘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 in November Norgrove had executed a U-turn:
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).
In its response in February 2012 the Government disagreed,
The Government believes that there should be a legislative statement of the importance of children having an ongoing relationship with both their parents after family separation, where that is safe, and in the child’s best interests. We have established a working group of Ministers to develop proposals for legislative change, which will be brought forward for wide debate and consultation later this year (Ministry of Justice & Department for Education, 2012).
The ministers – Tim Loughton, Maria Miller, Iain Duncan Smith, Jonathan Djanogly and Sarah Teather – launched a consultation into cooperative parenting which presented four options for consideration. Matt O’Connor petulantly refused to file a response, pouring odium on all those organisations which accepted invitations to give evidence. After the consultation was closed he then pretended he had been denied a hearing and launched a Facebook campaign demanding that F4J be invited by the House of Commons Justice Committee to give oral evidence on the draft family justice legislation, arguing that with a claimed membership of 36,000, F4J was the largest shared parenting group in the country and the only one which could plausibly represent fathers and their families. F4J’s paid-up membership, however, was only about 180 at the time. On the initiative of Caroline Nokes they were generously invited by the Committee to submit written evidence after the deadline had expired, but again refused.
Option One was incorporated into Clause 11 of the Children and Families Bill with the avowed aim that ‘both parents should be involved with their child’s upbringing as fully as possible’. There was the ubiquitous caveat, ‘where it is safe and in the best interests of the child’ (Department for Education, 2012). The final Bill presented to Parliament suggested,
A court… is… to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.
The O’Connors were openly disparaging of the clause, but missed how clever it was. Opponents of shared parenting argued that any presumption would contradict the paramount principle of family law that the child’s welfare must always be the court’s first consideration. Resident parents would invoke the paramountcy principle to justify obstructing contact.
The Government had ensured that the principle of involvement could not conflict with the paramountcy principle because the right of a child to be parented by both parents was now incorporated within the very principle itself, and thus re-interpreted the concept of ‘welfare’ to include shared parenting.
Caroline Nokes summarised:
Therefore, by inversing the subject of the legal right, and introducing a clause which gives this ‘right’ not to the parent, but to the child, the Government achieves the twin objectives of enshrining shared parenting, whilst maintaining the paramountcy of the child’s welfare.
Nokes sought to understand the O’Connors’ continuing opposition,
I cannot understand why F4J would be so scathingly critical of this clause, which… will legally empower the child to be parented by both parents. The point is therefore moot and seems to be an act of splitting hairs on the part of F4J.
This legislative move actually means opponents of shared parenting cannot now reasonably object, as the ‘safeguard’ they seek to apply, paramountcy, remains in place. Therefore, F4J should be giving this clause its qualified support, and now turning its attention to ensuring proper enforcement of the new right, rather than fighting a moot point over where the right to shared parenting should rest.
The Government’s other strategy was to introduce the Child Arrangements Order, which would remove the implication of winners and losers made by the old Contact and Residence Orders and to turn all existing orders for contact and residence into ones for Child Arrangements. Again F4J should have given this measure their support but again they failed to do so.
Nokes acknowledge that the Bill was not perfect and invited F4J no fewer than five times to submit written amendments, but each time they refused. These amendments could have covered issues such as asking the Minister for a clearer definition of ‘shared parenting’, the involvement of CAFCASS in contact disputes, the avoidance of delay, or the enforcement of orders, with a view to reducing the number of parents unfairly excluded.
Instead the O’Connors berated Nokes for refusing to sign George Galloway’s EDM2010 on shared parenting, but there are many reasons why she might have done so, including a questionable emphasis on fathers’ rights and reference to F4J and their preposterous claim of – now – a 40,000 membership.
The result of the O’Connors’ lack of cooperation was that the unamended Clause 11 went through to the House of Lords
The Coalition came under considerable pressure to abandon its commitment to shared parenting, and vested interests including Coram and the NSPCC lobbied together as the Shared Parenting Consortium; they persuaded Baroness Butler-Sloss, the former President of the Family Division to table a devastating amendment clarifying that involvement ‘means involvement of some kind, either direct or indirect, but not any particular division of a child’s time’, thus ensuring that the courts’ hands would remain tied on the one aspect of parenting over which they had any control. Fathers would be even worse off, with ‘contact’ reduced to ‘involvement’. Earl Howe summed up the amendment perfectly,
There is a very simple truth associated with contact disputes. It is that if both parties to the dispute are content with the amount of contact that they have with the child, there is no longer any dispute. Contact disputes are about one thing and one thing only: the amount of time that each parent believes that he or she should have with the child. That simple truth has somehow got submerged during the drafting of this Bill. What we needed in the Bill — what everyone thought we were going to get when the Green Paper was published — was measures designed to facilitate contact; measures that would put right the deficiencies of court settlements under the current system, deficiencies which the Government acknowledged in their Green Paper. What we have in Clause 11 are not measures that will facilitate contact, but rather measures that will serve only to defer contact. The so-called contact activities for which the clause provides are not contact; they are things that the court says you have to do before you are allowed contact. That idea, with great respect to the Minister, will do nothing to help sort out the one and only question at issue between two parents in this situation: how much time should each of them be allowed to have with the child? It completely misses the point.
Had the O’Connors actually responded to Caroline Nokes and submitted their amendment it is possible that the Minister would have been on record in Hansard confirming the legislative intent of the Bill. This would have given non-resident parents a credible argument to present to a judge: refer back to Hansard and ask the judge to interpret the statute, informed by ‘the will of Parliament’. In that way, a better definition of shared parenting would have been defined by common law (the law established by legal precedent), even if it was not in the statute, and non-resident parents would have been given de facto shared parenting.
By requesting amendments from the O’Connors Nokes exposed the paucity of their ideas and thinking: they had nothing to offer her. By replacing the rights of fathers with those of the children the Conservatives had undermined one of the pillars of the F4J campaign, and by introducing an astute de facto shared parenting, they prevented the O’Connors from claiming credit for a full 50/50 presumption. The O’Connors wanted shared parenting on their terms or not at all, and thus they betrayed another generation of fathers and their children.
Davies, S. (2013, May 03). Fathers for Justice face Twitter ban over campaign. Southern Daily Echo.
Dugan, E. (2014, October 09). Fathers 4 Justice and the mother of all hate campaigns? The Independent.
Knox, P. (2015, January 23). Man arrested after chilling message sent to Hampshire MP. Southern Daily Echo.
Nokes, C. (2014a, February 12). Caroline Opposes Lords’ Amendment to Children & Families Bill on Shared Parenting. Retrieved from http://www.carolinenokes.com.
Nokes, C. (2014b, October 12). “I’m sick of living in terror from on-line bullies” says Caroline Nokes. Retrieved from http://www.carolinenokes.com.
O’Connor, N. (2015b, February 13). Statement on behalf of Matt, Nadine and Archie O’Connor. Retrieved from http://www.fathers-4-justice.org.
O’Connor, N. (2015a, February 08). The Daily Echo, Romsey Advertiser, Caroline Nokes and the cancer of censorship. Retrieved from http://www.fathers-4-justice.org.
Romsey and Southampton North Conservatives. (2010, April 08). 08/04/2010 – Joint Statement with Fathers 4 Justice. Retrieved from Romsey and Southampton North Conservatives.
Southern Daily Echo. (2010, April 10). Tory backing for family law change. Southern Daily Echo.