A principle expressed by the Partner Abuse State of Knowledge project (PASK) has always stuck in my mind. It is that everyone is entitled to their own opinions but not to their own facts. The principle was prompted by the gendered misrepresentation of domestic violence statistics, but it can apply as well to many other debates.
A little while ago I was asked to prepare a fact-sheet about family breakdown. It was never used, but in light of the proliferation of ‘fact’-sheets which actually spout falsehoods designed to shore up a particular agenda I thought I would present it in a blog post. Feel free to comment.
Families, children and breakdown in the UK
- Number of married families with dependent children: 4,763,000 (60.2%)
- Number of single parent families with dependent children: 1,981,000 (25.0%)
- Number of cohabiting families with dependent children: 1,172,000 (14.8%)
- Number of dependent children in married families: 8,650,000 (62.9%)
- Number of dependent children in single parent families: 1,967,000 (14.3%)
- Number of dependent children in cohabiting families: 3,138,000 (22.8%)
In 91.4% of single parent families the single parent is the mother.
(Office for National Statistics, Families and Households Survey, 2014; Figures include same sex couples)
Contribution to family breakdown:
- Married couples: 31%
- Single parents (sole registered births) 20%
- Cohabiting parents (dual registered births) 49%
(Harry Benson, The myth of “long-term stable relationships outside marriage”, The Marriage Foundation, May 2013, extrapolated from Census and ONS data)
Rate of family breakdown
Every year 215,000 children will see their parents split up. Of the 47% of children born today outside of marriage, only 11% will reach 16 with their families intact.
83% of babies live with both parents, of whom 65% are married. By the time children are 15 only 53% will live with both parents, of whom 93% will be married.
The key factor is marital status at birth: couples who are married are far more likely to stay together than those who marry later or remain unmarried.
It is the trend away from traditional marriage which drives the increase in family breakdown. The fastest growing family type is the cohabiting family which has grown by 30% since 2004 (ONS) but is the least stable.
(Harry Benson, The myth of “long-term stable relationships outside marriage”, The Marriage Foundation, May 2013, extrapolated from Census and ONS data)
‘Common law marriage’ is a myth – there is not and has never been such a legal status. Couples are either married or they are not.
The good news is that marriage is getting stronger, and divorce rates in the first 5 years have been falling for 16 years.
(Harry Benson, Early marriages stronger for 8th year running, The Marriage Foundation, 6 February, 2014)
A marriage is an intentional, public act of commitment, but cohabiting couples often drift into cohabitation, drift into shared financial responsibilities, and drift into having children. They are much more likely to separate because the failure to marry is often the decision of only one partner, and their unwillingness fully to commit destabilises the relationship from the outset (Rhoades, G. K., Stanley, S. M., & Markman, H. J. (2006, December). Pre-engagement cohabitation and gender asymmetry in marital commitment. Journal of Family Psychology, 20(4), 553-560).
Reasons for Divorce
The number of divorces is declining, from 153,065 in 2003 to 118,140 in 2012. This is consistent with the decline in marriage and increase in cohabitation.
The sole criterion for divorce is the ‘irretrievable breakdown’ of the marriage, evidenced by one of five facts. In England and Wales 65% of divorces are granted to wives and 54% of these are justified by ‘unreasonable behaviour’ (Office for National Statistics). In the wiser Scots jurisdiction separation accounts for 93% of divorces, thus avoiding the need to demonstrate fault.
Cost of family breakdown
The cost to the economy of family breakdown has been estimated at £47 billion (Ashcroft, J. (2015) Counting the Cost of Family Failure, 2015 Update. Relationships Foundation, Cambridge).
Number of children who don’t have regular contact with parents
One consequence of family breakdown is that children do not get to see the parent who leaves the family home as much as they should.
In 2010 the Office for National Statistics reported that 3.8million children did not live with their biological father (Office for National Statistics, Labour Force Survey, 2010). This was rounded up to 4m and misrepresented by some fathers’ groups to mean these children never saw their fathers. Since 2010 this figure has fallen, because couples have been less able to afford to separate. Many of these children will have had levels of contact with the non-resident parent from a couple of times a year to a couple of times a week.
Only 11% of children live in more or less equally shared arrangements with their parents, while between a quarter and a third see the non-resident parent rarely, if at all (Peacey, V. & Hunt, J. (2008) Problematic contact after separation and divorce? A national survey of parents. London: One Parent Families/Gingerbread). A more conservative estimate is that a million children grow up ‘without any meaningful contact with their fathers’ (Centre for Social Justice. (2013). Fractured Families: why stability matters. London: Centre for Social Justice).
Reasons for parental exclusion
Half of all relationship breakdown happens during the first two years; this means the children are babies when their parents separate, they are dependent on their mothers and may still be breast-feeding.
Young mothers, made vulnerable by relationship breakdown, are reluctant to release young children into the hands of inexperienced fathers. They don’t believe fathers can supply their children’s needs (Moffitt, R. S. (2011). When mothers do not support contact. Retrieved from Maypole.org).
Fathers detest the new regime in which their ex (or, worse still, the court) regulates contact with their own flesh and blood. Some simply cannot deal with it and disengage in order to spare their children the ordeal of having to witness their degradation. The more hands-on a father is before separation, the more likely he is to become excluded after (Kruk, E. (1992). Psychological and Structural Factors Contributing to the Disengagement of Noncustodial Fathers after Divorce. Family and Conciliation Courts Review, 29(2), 81-101).
Often, disputes over child support and other finances increase tension and affect levels of contact. The state introduces a perverse incentive : the less contact mothers allow, the more child support they get (Ermisch, J. (2006). Child Support and Non-Resident Fathers’ Contact with their Children, ISER Working Paper 2006-14. Colchester: University of Essex).
Fathers, too, can use contact as a way to intimidate and control former partners (Coy, Maddy; Perks, Katherine; Scott, Emma; Tweedale, Ruth. (2012) Picking up the Pieces: domestic violence and child contact. Rights of Women and Child and Woman Abuse Studies Unit (CWASU), London Metropolitan University).
Older children can find it very difficult to negotiate the transitions between parents; parents can misinterpret these difficulties as ‘alienation’ by one parent or abuse by the other (Woodall, K. (2013, January 18). Crossing No-Man’s Land: Supporting Children in Transition. Retrieved from karenwoodall.wordpress.com).
Parents who go to court
Many non-resident parents feel the resident parent does not allow them enough time with their children. They are able to go to specialist Family Courts to apply for a Child Arrangements Order which is a court order designed to provide a detailed template showing how the child will be enabled to continue a relationship with both parents.
These courts also deal with many other types of dispute between parents, such as arguments about schools, medical treatment or which country a child is to live in.
The official figure that only 10% of separating couples use the courts was based on a misinterpretation of an academic study (Blackwell, A., & Dawe, F. (2003). Non-Resident Parental Contact. Department for Constitutional Affairs), the real figure was nearer 20%, but that has recently fallen substantially.
From 2013 public funding, called ‘legal aid’, was almost entirely removed from family cases, causing the total case load to drop from 281,237 in 2012 to 241,924 in 2014. The number of cases in which both parties had legal representation fell from 50% in 2011 to 26% in 2014 (Trinder, L. et al. (2014). Litigants in person in private family law cases. London: Ministry of Justice).
Divorce makes up 47% of cases and ‘private law’ (disagreements between parents, mostly under Section 8 of the Children Act 1989) 17.5%.
Of parents who apply for more contact 77% are fathers.
What the law says
International treaties recognise that parents have rights. For example Article 16 of the United Nations Universal Declaration of Human Rights which was ratified by the UK in 1948 says:
- Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
- Marriage shall be entered into only with the free and full consent of the intending spouses.
- The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
The European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 which was integrated into UK law through the Human Rights Act 1988 says at Article 8,
- Everyone has the right to respect for his private and family life, his home and his correspondence.
- There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 12 says,
Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.
Neither ‘family’ nor ‘family life’ is defined in law; as English/Welsh law interprets it a father’s right to family life is only engaged where it has already become established. If he still has or has had a meaningful relationship with his children then he has a ‘family life’ but if that relationship has been slight or non-existent – perhaps because his child was born after separation – then he has no ‘family life’ and no right which can be violated.
Domestic law in England and Wales does not give parents rights. Family law is based on the single fundamental principle contained in Section 1 of the Children Act 1989 that the court must always do what is in the child’s best interests; this is termed the ‘welfare principle’.
This situation creates tension between parents who think they have rights and family law which does not recognise those rights.
Difficulties with court system
Many parents, particularly but not exclusively fathers, think the Family Courts are biased against them.
This is a very controversial dispute, with fathers often campaigning noisily for their ‘rights’ and government denying there is a problem; any bias, they say, is only a perception. Neither side has actually produced a convincing argument for their position.
There are other problems with the Family Courts:
- Their starting position is residence with one parent only, forcing the other to be a contact parent. This old model is derived from research conducted on World War II Jewish refugees (Goldstein, J., Freud, A., & Solnit, A. (1973). Beyond the Best Interests of the Child. Simon and Schuster).
- This model is not gendered, but by adding the ‘maternal deprivation hypothesis’ that young children must not be separated from their mothers (Bowlby, J. (1951). Maternal Care and Mental Health. Geneva: World Health Organisation.) it leads to the single-mother model of post-separation parenting. Fathers believe that if both parents were treated as resident it would eliminate much conflict.
- The courts are slow; because of huge pressure on limited resources it can take a very long time for cases to be processed, sometimes more than a year. This means children often have no more contact with their non-resident parent until the case is sorted out.
- The courts don’t enforce orders when parents don’t obey them. Judges don’t really know how to deal with this and believe the sanctions available to them – like fining parents or sending them to prison – are damaging to children. An evaluation revealed the most common response is another identical order (Trinder, L., McLeod, A., Pearce, J., Woodward, H., & Hunt, J. (2013a). Children and Families Bill: Memorandum of evidence. Nuffield Foundation). 85% of parents who apply for orders to be enforced are fathers.
- The system is complex with unfamiliar jargon and lots of law; it is time-consuming and difficult for ordinary parents to negotiate without specialist support.
- Applying for court orders is expensive, the fee for a children’s application is £215, a divorce costs £410. Hiring a lawyer to help – which most parents must do – costs upwards of £200 per hour; a simple case can cost £5,000 and some parents spend hundreds of thousands.
- Much of what goes on in the courts is confidential – critics say they are secret – so that limited information comes out, and there are huge areas where nothing is known at all – such as demographic data, the costs of cases to parents or the taxpayer, the outcomes of orders and their sustainability (Family Justice Review Panel. (2011). Family Justice Review: Final Report. Ministry of Justice; Department for Education; Welsh Assembly Government). This means ordinary litigants enter the system in a state of ignorance, and the data available to politicians, academics, journalists and other interested parties is very poor.
Rise of fathers’ rights groups
From the 1970s fathers began to form protest groups, campaigning for fairer treatment under the law. This became characterised as the fathers’ rights movement (FRM) and was a world-wide phenomenon. It sought to cast the difficulties fathers experienced in the courts as a civil rights issue.
In the UK the first group was Families Need Fathers (FNF), founded in 1974. From the start there was a failure to agree on common aims and strategy and the FRM has become noted for its internal discord and tendency to fragment. Dozens of other groups have formed over the years since.
For a brief period from 2003 until 2006 the group Fathers4Justice (F4J) achieved a high profile with its colourful and attention-seeking stunts. In 2004 it threw a flour-filled condom at Tony Blair, causing evacuation of the Commons chamber, and placed an activist dressed as Batman onto Buckingham Palace. The Queen was not in residence.
F4J, too, fragmented, leading to Real Fathers for Justice and New Fathers 4 Justice. Attempts to form coalitions and heal the fragmentation have been unsuccessful. In recent years F4J has waged an ineffective campaign against a bewildering array of targets and become an obstacle to reform.
Rise of shared parenting groups
Since 2010 campaigners’ attention has begun to shift from parents’ rights to the welfare needs of children, backed by growing academic support for ‘shared parenting’, the arrangement whereby parenting of children after separation is shared more-or-less fairly between parents rather than being the preserve of just one. Single gender support groups like FNF, F4J, Gingerbread and Women’s Aid have begun to give way to gender-neutral support such as Wikivorce, rooted in strong evidential validation and with an emphasis on resolving disputes outside court.
Family law is subject to constant revision and tinkering. In 2014 the Children and Families Act replaced the old orders for Contact and Residence with a combined order for Child Arrangements. The idea was to end applications by parents in which they consider only what they want for their own relationship with their child and to encourage them (and the courts) to consider a post-separation parenting package involving both parents in an arrangement best for the child.
At the same time the legislation required the applicant parent to attend a meeting about mediation before proceeding to court in recognition that mediation can lead to more secure, sustainable outcomes and cost substantially less than going to court.
A further innovation of the new Act was to redefine the child’s welfare to include the continuing involvement of both parents throughout childhood.