A study (Harding & Newnham, 2015) was published yesterday about post-separation parenting which, according to its sponsor, the Nuffield Foundation, proved that the family courts are not biased against fathers. “Anti-father court bias is ‘a myth’” thundered Frances Gibb in The Times (Gibb, 2015), echoing her 2008 article which proclaimed, ‘Fathers’ groups are wrong, most men are winning right to see children, study shows’ (Gibb, 2008). The Independent reported ‘Men are treated fairly when trying to get access to their children in courts, study says’, showing typical persistent use of pre-1989 terminology.
In fact, what the report said about bias was this from the executive summary:
We found no gender bias from the court when it came to deciding where the child should live in contested cases. The success rate for mothers and fathers who applied for residence orders was broadly similar. Of the 32 applications for a sole residence order by fathers, 16 ended in a sole residence order: a success rate of 50%. Of the 30 applications by mothers for sole residence; 19 ended in a sole residence order: a success rate of 63%.
The full report is much more interesting, and shows a gender-based difference: mothers apply for residence in order to retain the existing arrangement; fathers apply in order to effect a change of residence. Because courts inevitably tend towards preserving the status quo, it follows that mothers are more likely to be successful. The report could not compare success rates for contact applications because of the small sample.
The report is also very interesting on mediation (government assumptions are wrong), on the failure of LASPO to allow for significant forms of domestic violence, on the courts’ use of resources, on the effect of judicial intervention, on the courts’ ability to investigate allegations, and so on. It is a shame that attention paid has been so blinkered.
Today in The Telegraph veteran fathers’ campaigner Glen Poole, formerly of Fathers4Justice and now of InsideMan responded to the study (Poole, 2015). This, in turn, is my response to Glen.
I absolutely agree that the study under discussion doesn’t disprove the allegations of bias, but it doesn’t pretend to; the 2008 Hunt/Macleod report which was commissioned by the MoJ to do precisely that didn’t either. The trouble is, the fathers’ movement has never proved their case either. I read Glen’s article with excitement, therefore, in the hope that at long last there would be a persuasive argument for bias, but I was disappointed.
Maybe it is just me, but I don’t see the argument. Glen’s first contention is that 96% of the applicants for contact (in this very small sample – other studies show a lower figure) are men. But that has absolutely nothing to do with the courts, and reflects how couples tend to divide up parenting on separation. The courts cannot be held responsible for a selection that takes place before applications are made.
Glen’s next argument uses the fact that half the fathers in the study ended up with restricted or no contact,
I don’t know about you, but when I think of an “overwhelmingly successful” parent I don’t picture someone who is neither trusted to be alone with their children, nor allowed to wake up in the same house as them.
But what does he expect? These are the worst cases which necessitate a judicial decision; most cases don’t get this far. These are cases where it has been alleged that the father is violent, or is unable to care for the child, or abuses drugs or alcohol. It would be extraordinary if all these fathers were routinely getting 50/50. If Glen had read the full report and not just the summary he would have found his own question answered,
This may not seem encouraging, but it is. The courts deal with an atypically problematic group of separated parents in terms of domestic violence, entrenched conflicts, and also a number of welfare-related things like addiction, ill health and chaotic parenting.
The issue of the unequal rules concerning parental responsibility – on which Glen quotes Duncan Fisher, founder of the Fatherhood Institute – does, I agree, constitute discrimination,
In UK law, a father can only be a father if the mother approves him. She can do this in two ways – marry him or invite him to sign the birth certificate. If neither of these happens, he is not the father until the family court approves him. A man has to be vetted by the mother or the state before he is allowed to be a father.
But in 40 odd years of fathers’ campaigning, this is the ONLY bit of legislation found which is clearly discriminatory, and there are good reasons for that: it was a feminist’s (Brenda Hale) effort to replace earlier legislation which mercilessly discriminated against women. It tidied up a bit of legislative debris left over from the 1973 Guardianship Act and struck a compromise – a political fudge – between the Law Commission’s demand that all separated fathers be subjected to judicial scrutiny (Law Commission, 1986) and what was financially practicable. Few would argue that it is perfect.
And that, as far as I can see, is that. The only other arguments are along the lines of, “it’s biased because I say it is”, or “it’s biased because we all know it is”, etc.
The fathers’ movement will always lack credibility as long as it cannot back up its claims. It will also lack credibility while it ignores the inconvenient truth that the experience of many women is that the system discriminates against them. It allows and enforces contact even where there are proven welfare issues, and it fails to do anything to oblige unwilling fathers to take responsibility (other than financially) for their children. Other jurisdictions are able to force even unwilling fathers to pull their weight.
My own position now, as a former member of Fathers4Justice like Gen, is that single-gender parenting campaign organisations are obsolete. Their rhetoric has become stale and just goes round and round repeating tired old grievances which people believe because they have become an unchallenged part of the culture. Like feminism which hasn’t changed its rhetoric despite decades of advances and becoming the establishment, fathers have failed to change with the times, or to respond to recent changes in legislation and practice. My view is that the courts are not biased against fathers, they are biased against families, and that the balance between parents and the state has shifted too far in favour of state intervention – consider this jurisdiction’s almost unique embrace of the horrific practice of forced adoption. I think parents need to stop fighting and start cooperating; I think we need a gender-neutral campaign, and an end to all the groups which only support fathers, or only support mothers.
Gibb, F. (2008, September 26). Fathers’ groups are wrong: most men are winning right to see children, study shows. The Times.
Gibb, F. (2015, June 02). Anti-father court bias is ‘a myth’. The Times.
Harding, M., & Newnham, A. (2015). How do county courts share the care of children between parents? University of Reading & University of Warwick.
Law Commission. (1986). Illegitimacy: Second Report. London: Law Commission.
Poole, G. (2015, June 03). Are divorced dads really treated fairly by the family courts? The Telegraph.