In 2003, academics Fiona Blackwell and Alison Dawes produced a report for the Department for Constitutional Affairs, “Non-Resident Parental Contact”.  One of its findings was that only 11% of successful post-separation arrangements between parents concerning their children were made by the courts.

The remaining 89% were made by the parents themselves without court intervention, often using intermediaries such as mediators and solicitors.

The figure showed what a very ineffective place the court was for resolving these disputes.

The following year, the statistic – rounded down to 10% – found its way into a Government Green Paper published by the Departments for Constitutional Affairs, of Education and Skills, and of Trade and Industry, “Parental Separation: Children’s needs and parents’ responsibilities”,  The paper misrepresented the figure, claiming, “only 10 percent of separating couples with children have had their contact arrangements ordered by the courts”.

The 10% figure was taken up eagerly by ministers, academics and agencies such as the newly-formed Cafcass.  It enabled all of them to claim that the parents who end up resolving their disputes in court represent a minority of highly conflicted parents; they were often violent, generally dysfunctional, and unable to put the interests of their children before their own petty squabbles.

These parents were in court entirely through their own faults, it was therefore unjust to blame the courts or the system for any difficulties there might have been in resolving their cases, and unreasonable to expect too much money, time or research to be spent finding ways to move their cases forwards.

Over the years, minister after minister washed his or hands of the problem, always siting the magical 10% figure.  For example, in a Commons debate on Family Justice on 13th December 2004 Margaret Hodge said, “Nine out of 10 families, when they separate or divorce, deal with the issues of parental responsibility between themselves”,[1] while Lord Adonis said “about 90 per cent of separating parents make provision for bringing up their children, including contact arrangements, without recourse to the courts.” [2]

The trouble was, the figure was completely false.

In a report for the fathers’ campaign group Fathers 4 Justice, “Family Justice on Trial,” I wrote,

Fathers 4 Justice have always disputed this figure, though again the evidence is not recorded to calculate it precisely: In 2008 there were about 70,000 divorces involving children, 113,000 court applications and 80,000 contact orders; the 10% figure simply isn’t credible.

We estimated the true figure to be between 30% and 40%, and the former Children’s Minister, Margaret Hodge, confirmed this in a letter to Gary Burch of Fathers 4 Justice in 2003,[3] ‘We commissioned the Office of National Statistics (ONS) to undertake a survey on non-resident parental contact.  The survey found that 60 percent of couples were able to make their own arrangements.’

Recently, Michael Lewkowicz, Director of Communications at Families Need Fathers, has had another go at resolving this issue.  As he says, it doesn’t take “a mathematical genius” to realise that the figure cannot possibly be true,

… there are some 50,000 court applications each year, less 30% return cases leaves 35,000 new applications.  If these represent 10% of separations, then the implication is that there are some 350,000 break-ups a year.  Assuming an average of 2 children per case (Cafcass average figures) implies 700,000 children involved.  Since the number of births in England and Wales in 2017 was 679,106, the figures suggested that every single family separated before their children left school.  Spot a problem?  We did.

Where others had failed, Lewkowicz, finally, was successful, and secured a grudging admission from Cafcass that the true figure is 38%, which we may be sure is a low estimate.

The implications are huge.

Ministers cannot hide behind this figure any longer.  The parents who are forced to use the courts in order to resolve parenting disputes are not bad parents; they are not violent, they are not highly conflicted, they are not dysfunctional: they have just found it very difficult at a time of high personal distress to agree parenting arrangements with another parent whom they may well hold responsible for the breakdown of their relationship.

A useful tool to understand these disputes is the Kübler-Ross curve of the stages of grief on which parents move through the stages of denial, anger, bargaining and depression to final acceptance.  Parents who are not at the same position – and most are not – will not be able to negotiate effectively with each other until both have caught up, and will consequently need outside support and guidance.

By entering the courts, parents have fallen foul of a system that does not work.  As has been well known for many years, the courts tend to polarise parents and entrench differences; by taking decision-making away from parents and imposing an adversarial approach, the divergence they approach court with, which in other circumstances would be transitory, becomes set in stone, and is exacerbated by opposing legal teams.  Where parents must represent themselves, as is becoming more and more the case, the stress of navigating their way through a complex legal process adds to the conflict.

The former President of the Family Division, the late Lord Justice Wall, was particularly concerned by this fact; in a key 2002 report to the Lord Chancellor by the Children Act Sub-Committee, which he had chaired, he had written,

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.

In a 2003 case he repeated this criticism,

The litigation process is adversarial and counter-productive.  It entrenches attitudes rather than encouraging them to modify.  It tends to focus on the arguments of the parents, not the needs of the child.  It puts particular pressure on the divided loyalties of children.

In a 2004 paper entitled Are the courts failing fathers? he said it again,

Unfortunately, the cases which have to go into this adversarial system are those least likely to benefit from it… the adversarial system is adult orientated.  It focuses on the position of the parents, not of the child, and thus has the tendency… to entrench attitudes rather than encouraging them to modify.

While report after report has acknowledged this, nothing effectively has changed, and the 10% figure has provided an excuse.  No longer.

Lewkowicz is to be congratulated on forcing an admission out of Cafcass.  I don’t know how aware he is, however, of the history behind this particular lie; clearly it has been known to be false almost since it was first told.  As a result, I don’t know how much, if anything, will actually change.

 

[1] Hansard, 13 December 2004 column 1462, http://www.publications.parliament.uk/pa/cm200405/cmhansrd/vo041213/debtext/41213-25.htm

[2] Hansard, 29 June 2005,  http://www.publications.parliament.uk/pa/ld200405/ldhansrd/pdvn/lds05/text/50629-04.htm

[3] Margaret Hodge: ‘We commissioned the Office of National Statistics (ONS) to undertake a survey on non-resident parental contact.  The survey found that 60 percent of couples were able to make their own arrangements.’ 21 September 2003.

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