There was a little spat on Twitter on Wednesday between Laura Monk, a feminist researcher at Coventry University, and belligerent fathers’ group Fathers4Justice.  After she posted a piece exploring alleged court bias against fathers the group accused her of ‘bigoted anti-father propaganda’; Monk responded by removing her post, but not before it had been read by the usual army of F4J supporters who followed up with a vile barrage of foul-mouthed and very ignorant tweets and re-tweets.  Such mindless behaviour merely reinforces the prejudices against fathers, and entrenches a lack of political will to engage with them or their concerns.

I have to say, I deplore the aggressive and intimidatory F4J approach; if you disagree with something it is far better to put up a persuasive argument than to bully your opponent into submission.  Let’s look at what Monk said and see where we get to.

She actually asks two questions, “How many fathers are refused applications for child contact and is there bias against fathers in contact cases?”  Monk only attempts an answer to the second question.  The first would be easier to answer because it is irrelevant: this is not what fathers complain of; most manage to get an order of some sort and very few applications, if any, are “refused”, it isn’t even clear what Monk means by this.  The problem for fathers is that the orders they get are often for minimal contact, they are not monitored, and when they are breached they are not enforced.

Monk starts with what could be a very good point: reports of bias against fathers are mostly made by the fathers themselves.  Unfortunately she doesn’t build on this; she does not say what form the bias fathers complain of takes and does not analyse their claims.  Instead, she relies on the reports of those who deny that there is any bias and thus presents only those aspects of the system which they believe to be fair.  We end up with a limited and rose-tinted view of the system from those who work within it, and a blanket dismissal of how the systems customers perceive it.

Her first witness is Michael Flood, a pro-feminist Australian academic who has long sought to discredit the fathers’ or men’s movements.  Flood is one of the founders of the Australian White Ribbon campaign, which portrays men as the exclusive perpetrators of domestic violence, and he has never, to my knowledge, actually engaged with the specific claims fathers make, preferring to focus instead on their feelings and perceptions.

Monk uses Flood to argue that fathers’ perception that the system is biased against them is based on anger, blame, frustration and feelings of helplessness.  She observes, “Australian research suggests that significant proportions of men feel angry at their ex-wives, this anger lasts for years, and blaming of their ex-partners intensifies over time”.  This sort of writing isn’t terribly useful without an analysis of what exactly it is that men are angry about, whether it is justified, and why it should escalate.  She also cites Richard Collier and Sally Sheldon who accused fathers’ groups of being selective with statistics and of relying on anecdotal evidence (Collier & Sheldon, 2006).  She doesn’t mention that two years later Richard Collier had become a father himself and was writing rather more sympathetically (Collier & Sheldon, 2008),

There is, crucially, no assumption [in law] to shared residence or ‘equal parenting’ arrangements.  There is, rather, a lack of political commitment to dealing with, and taking seriously, the specific circumstances of separated fathers.

…the failure of the law to accord fathers equal contact time with their children is perceived as a psychological injury relating to many men’s sense of their worth, not just as fathers, but also, importantly, as men.

The family courts deal with a wide range of parenting issues, and make a correspondingly wide range of orders, but what father’s groups are concerned with is the relatively narrow issue of fathers who struggle to maintain contact with their children after family breakdown, who make applications for contact and who then find the orders difficult to enforce.  Although contact orders have now been replaced by orders for “child arrangements”, these remain the fundamental issues for groups like F4J.  The problem for fathers is that these processes can take an astonishing length of time – often many years – consume a great deal of money and emotional capital, and often leave fathers at the end of it no closer to resolution.  In the meantime the mother’s relationship with the children continues uninterrupted.  It is easy for fathers to conclude the system is biased against them: fathers are angry at being excluded from their children’s lives, and the anger grows as the exclusion continues and the system’s failure to deliver a solution becomes more evident.

Monk further observes that fathers extend the anger and blame directed at their former partners to the family courts which through their inaction and failure to enforce orders are seen to be endorsing the “gatekeeping” behaviour of mothers.  These views are presented as if they are without factual justification, merely the unsubstantiated perceptions of unreasonable fathers.  There is no attempt to examine the many independent sources which corroborate fathers’ criticisms of the family courts.

Laura Monk’s next witnesses are Joan Hunt and Alison Macleod who wrote a 2008 report, specifically commissioned by an obviously nervous Ministry of Justice to prove that fathers’ claims of bias were false.  Those who wanted fathers to be proved wrong jumped on the report; The Times thundered “Fathers’ groups are wrong, most men are winning right to see children, study shows”, failing once again to understand fathers’ complaints that contact ordered was not always enabled, seldom enforced and never monitored.

Hunt and Macleod looked at a small sample of contact applications, three-quarters of them by fathers.  Crucially, the level of contact regarded by the authors as “satisfactory” was actually very low – just two overnight stays per fortnight.  Although they claimed four cases in five had resulted in direct contact, under half of the children were benefitting from overnight stays with their fathers; only one child in ten was able to stay with their father for more than two nights at a time.  One child in five – representing nearly 16,000 children in just that one year – wasn’t getting any contact at all, of any sort.  The study confirmed that court orders were routinely flouted and the courts were neither monitoring contact nor enforcing it when fathers returned to court.  When parents applied for enforcement only half were successful in getting the orders applied for.

The extraordinary fact is that the Hunt/Macleod report is the only one on which apologists rely when rejecting the charge that the courts are biased against non-resident parents.  No attempt was made by the researchers to engage with the detailed claims that fathers’ groups had made, and their interviews were exclusively with solicitors, who understandably refuted denigration of the system.  The likelihood is that the report seriously misunderstood and misrepresented the true situation; the truth is that because contact is neither monitored nor enforced there is absolutely no evidence that contact orders (or their new equivalent) are of any value.  Because contact orders are by far the most numerous of orders made, this calls into doubt the very existence of a family court, indeed, it was Lord Filkin, minister for the family courts, who had admitted in 2004, “Any court that does not enforce its own orders is a sham”.

The simple fact is that if a court will not enforce its orders, the orders become worthless, and if it is known that they will not be enforced, it becomes far more likely they will be breached.  For example, a 2008 survey of legal professionals by Cardiff University law students dismissed the enforcement of contact orders as “an absolute joke” (Dyer, McCrum, Thomas, Ward, & Wookey, 2008).  One solicitor with over 27 years’ experience had only seen two orders enforced.  Some members of the judiciary have also spoken out: James Munby identified the problem in 2004 (Re D (Intractable Contact Dispute: Publicity), 2004),

Efficient enforcement of existing court orders is surely called for at the first sign of trouble.  A flabby judicial response sends a very damaging message to the defaulting parent, who is encouraged to believe that court orders can be ignored with impunity, and potentially also to the child.

The problem for the judiciary is that any form of robust enforcement – a fine, an unpaid work requirement (formerly known as community service) or a short prison sentence – is regarded as interfering with the primary carer’s ability to parent the child, and that invokes the judges’ first requirement which is always to consider the child’s welfare as paramount.  Thus their hands are very much tied.  Consider the testimony of two of them (Hunt & Macleod, 2008),

How can you send to prison a mother with several children?  It goes through stages; we are encouraged to be bold enough to send mothers to prison.  But on a practical basis it doesn’t work.  And you’re dealing with these mothers who will tell the kids as they’re coming out of the front door with their bag, ‘I’m going to court, your father is getting me sent to prison’.  And how is that going to assist the relationship?

Once you’ve done that you’ve spent your powder as a court, really and in a way you’ve surrendered your jurisdiction to the mother.  You’ve punished her but you haven’t achieved anything; you’ve given her the power to control the case.  I think it’s a defeatist thing to do, quite honestly.

The strange attitude of the judiciary is that the responsibility lies with the party to whom the order applies to obey it, rather than with the judiciary to enforce.  The President of the Family Division exclaimed in 2013,

I refer to the slapdash, lackadaisical and on occasions almost contumelious attitude which still far too frequently characterises the response to orders made by family courts.  There is simply no excuse for this.  Orders, including interlocutory orders, must be obeyed and complied with to the letter and on time.  Too often they are not.  They are not preferences, requests or mere indications; they are orders (Munby, 2013b).

It is hard not to dismiss this as rhetorical playing to the gallery.  New sanctions given to the courts at the request of judges have not helped the situation because they have not been used; in 2010 a thousand applications were made for Enforcement Orders, but only 55 were granted, with a derisory four orders for compensation (Family Justice Review Panel, 2011a); in 2012 only 53 Enforcement Orders were made.  In 2013 an evaluation was published (Trinder, McLeod, Pearce, Woodward, & Hunt, 2013a); it found that the most common court response – in 62% of cases – was to make a new order similar or identical to the original one; unpaid work requirements were made in only four cases – two were suspended; expert reports were ordered in only three cases; no finding of fact hearings were held; and little use was made of the courts’ power to order CAFCASS to monitor contact, and there was thus no information available on the outcomes of orders.

Is this bias?  Given that 77% of applicants for contact are fathers (Hunt & Macleod, 2008) and that 85% of applications for enforcement are brought by fathers, it is easy to understand that from the perspective of fathers it certainly looks like it.  But it also means that large numbers of women are experiencing the same problems.

Laura Monk states that the courts are keen to promote the continuation of relationships between children and their parents if at all possible; case law bears this out, consider for example Nicholas Mostyn’s ruling in Re C (Abduction: Residence and Contact) [2005] EWHC 2205 J,

[28] Given the terms of the Strasbourg jurisprudence [the European Convention on Human Rights] to which I have referred, it is almost as if there is a presumption in favour of normal contact and it is for those who say it is inappropriate to prove by clear evidence why this is so.

There is a wide gulf, however, between the intention and the reality; senior judge Baroness Hale was forced to admit in Re G (children) [2006] UKHL 43,

Making contact happen and, even more importantly, making contact work is one of the most difficult and contentious challenges in the whole of family law.

Why is this?  Even Laura Monk is prepared to quote the Hunt/Macleod interviewees who believe there is no systemic bias by the courts or by judges but nevertheless concede that

c) resident parents start off from a position of strength and it is too easy for them to manipulate the system and spin things out; d) the whole process takes too long and some parents give up; e) some resident parents and children remain persistently opposed to contact and the court’s abilities to deal with this are limited.

The first point here shows that it is difficult to overturn the status quo, and cases tend to end up where they start off.  When most couples separate it is into traditional gender roles, and fathers expect mothers to do most of the day-to-day parenting they little realise what this can means when things turn bad.

The idea that fathers give up the fight just at the point when they are about to win is widespread and ties in to the idea that fathers are not terribly committed to these relationships anyway; in fact, most cases are withdrawn because agreement has been reached (57%).  There are complicated reasons why fathers leave the process before it is completed, but one seems to be that fathers cannot cope with the very slow process by which contact which has stopped is incrementally reintroduced; there is no evidential justification for this approach.  Another common reason is that the whole process has been so protracted and taxing that fathers reach a point where they no longer want to put their children through it.  As has repeatedly been noted, the courts simply are not effective at enabling contact where a case has endured for years without resolution and resident parents have no fear of sanctions.

On the same day Laura Monk made her fateful post, Nick Woodall of the Family Separation Clinic tweeted about a case

Mum makes uncorroborated allegations of child abuse. Dad banned from seeing children until case heard. Case will not be heard for 18 months.

There will be those who see such a case as further evidence of bias; from the father’s perspective this is a simple “he said/she said” dispute in which the court has chosen to take the mother’s position, but that isn’t what is going on at all.  Faced with allegations of child abuse a court has no option but to probe them, ideally by means of a finding-of-fact hearing.  These necessitate a number of investigations leading to reports by CAFCASS and, where necessary, expert witnesses, culminating in what may run to a five-day hearing in court.  Given the pressures on the courts and on CAFCASS, an 18 month delay is not unprecedented, though it is thankfully rare; delays of 12 months, however, are quite common.

The inevitable consequence of such a delay is a cessation of the relationship between father and child; getting that relationship going again may prove very difficult, particularly given the CAFCASS policy of reintroducing contact very gradually, a process which itself can lead to further degradation of the relationship.

The system has been aware of the dangers of delay for many years; a clause warning against delay has been incorporated into the legislation, as if that alone could change the way the system works.  A report delivered to the government in 2002, Making Contact Work, noted  (Advisory Board on Family Law: Children Act Sub-Committee, 2002),

The current procedures are too slow.  There is insufficient court time and a lack of resources: cases take too long to come to court.  There are substantial delays which are detrimental to children and their parents.

It continued,

The court process is stressful for both parents and children, it is expensive for those who are not publicly funded; it is slow and adversarial.  It tends to entrench parental attitudes rather than encouraging them to change.  It is ill adapted to dealing with the difficult human dilemmas involved, notably when it comes to the enforcement of its orders.

The report’s author, Lord Justice Wall, later President of the Family Division, acknowledged in a 2004 paper entitled Are the courts failing fathers?,

Unfortunately, the cases which have to go into this adversarial system are those least likely to benefit from it… (Wall, 2004).

Sir James Munby, the current President of the Family Division, has been particularly outspoken about delay; in a widely reported case in 2004 he had said,

The first thing is to tackle the problem of delay.  The delays in the present case were scandalous.  No case of this kind should take anything remotely approaching five years to resolve (D, 2004).

Giving evidence to the Commons Select Committee Munby called for more resources and more judges, but also suggested procedural changes which would use existing resources more efficiently,

If there was a much more controlled use of evidence, if we had a much tougher system, saying in effect that you cannot put it in evidence unless the court says you can, and a much more rigorous control of the subject of the evidence and the topics which can be dealt with, in other words, the court is saying, “You can put in evidence, but in relation to the following matters only”, if we took a tougher line, and some judges do this in some contexts, saying that the evidence is not to exceed five pages or 10 pages of A4, things of that sort might help.

To a limited extent some of this has been addressed: the Children and Families Act 2014 introduced stricter controls on expert evidence which must now be “necessary” rather than “reasonably required” as was the case before.  Evidence presented in contravention of the new rules will be ruled inadmissible.  In addition, Munby introduced a new Practice Direction limiting the size of bundles to 350 pages; this is far in excess of the five or ten he suggested, but still represents a considerable improvement.

Recent changes to the orders – combining the old Contact and Residence Orders into a single “Child Arrangements” Order – and to the procedure – the new Child Arrangements Programme – will undoubtedly improve the system; it is disappointing, however, that one opportunity has been missed.

In Re D Munby proposed a “twin-tracking approach”:

1. The simpler and more straightforward cases should be put on a fast track, where the overall court timetable is measured in weeks rather than months

2. The more serious and complex cases should be allocated to what for want of a better expression… I will call the multi-track, where the overall timetable, even if it cannot be measured in weeks must at least be measured in months rather than years.

Such a system would require a form of triage, analogous to that operated in accident and emergency departments, and one of the best ways to operate that would through the Australian-style Family Hubs which have been advocated by people as diverse as Iain Duncan Smith, lawyers Mishcon de Reya and Fathers4Justice.

I have touched on only two of the many failings of the family courts: the refusal to enforce orders and the intolerable delay.  My point is that neither is related in any way to bias, and both can disadvantage litigants of either gender, depending on the circumstances of the case.  It is these failings, and the others such as poor case management and judicial continuity or the inadequate way in which allegations are dealt with, which make litigating in the family courts such an unpleasant, costly and prolonged process.

Laura Monk is wrong merely to cite other feminists, like her, who blithely dismiss the criticisms fathers make about the family justice system without examining the detailed criticisms made, to determine whether there is any truth to them, and try to understand why they are made.  Of course, if you want to read something trashing men and fathers, then Michael Flood is your man and he will not disappoint, but you won’t learn anything new.

But fathers’ groups are wrong too.  Merely parroting what others have said in the past shouldn’t be enough: much has changed; recognition should be given to the new orders and new Child Arrangements Programme, and to the other measures in the Children and Families Act.  There are some McKenzie Friends whose own cases happened 10, 15 or 20 years ago, and who haven’t quite kept up.  The men in these organisations tend to talk amongst themselves, in closed groups, confirming each other’s victimhood; they don’t get out much, and are often unaware of what is going on in other organisations.  If you go to court with old expectations of gender bias, don’t be surprised if the court responds in a gendered way; if you go with an angry old dad as your McKenzie, a man who is still wanting justice for a case he lost years ago, don’t be surprised if the court considers your approach isn’t child-focused.

As new fathers get the same outcomes as old fathers it reinforces the perceptions and the prejudices, and fathers’ distrust of the courts becomes self-fulfilling; there are some really good McKenzies available, but there are also some dreadful ones.

I shall say this in conclusion: I do not believe that the resolution to these issues will be found by any individual or organisation looking at it from a blinkered, gendered perspective.  Trying to do so merely entrenches the habitual gendered positions and provokes continuing hostility and rivalry.  Just as the family justice system needs to change, so too do parents’ responses to it; we need a holistic new politics of campaigning.

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