August 12, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization
Proceeding with Trinder, et al’s 2013 study of British family courts and their approach to applications by non-resident parents (86% were fathers) for enforcement of contact orders. Transparently, it was the authors’ goal to find that courts were doing an acceptable job and that little or no changes need be made. That’s made all the clearer by the fact that the authors failed to notice the clear implications of their own findings.
Most notably, in the 205 cases studied, not one judge either ordered a change of custody or simply handed the child to the non-resident parent for a period of time to make up for the refusal by the resident parent to comply with the visitation order. The authors break down the judges’ orders into five categories, none of which includes those methods of enforcement.
Those five categories are:
Settlement (39 cases, 19%) a new/revised court order setting out when and where contact is to occur (the contact timetable).
Coparenting support (95 cases, 46%) a timetable for contact plus measures to encourage parents to work together, including handovers through third parties, trial periods and review, referral to mediation or parent education (sPIP).
Protective (35 cases, 17%) assessing risk, e.g. by a drugs testing regime, and managing risk by restricting contact (supervised or indirect contact) or seeking to change behaviour of perpetrators (e.g. referral to domestic violence programmes).
Participatory/child-led (20 cases, 10%) the court elicits and then largely follows the views of older children, often for less or contact.
Punitive (18 cases, 9%) – the court seeks to ensure one party complies with (a) the index order and/or (b) the court process. The court may order an assessment for unpaid work requirement, make an order that one party undertakes unpaid work requirement (community service), or threaten or order imprisonment for contempt of court.
In short, the harshest thing a court may do is threaten or imprison for contempt the resident parent. Everything else is hortatory except when the court accepts the wishes of older children. That raises an obvious question: What do courts do to actually enforce their orders, i.e. to ensure that Dad gets to exercise the minimal parenting time he was given by the original order? The answer is little or nothing. Yes, imprisonment for contempt may accomplish the task, but, if that were done in any of the 205 cases, the authors don’t mention it.
What they also don’t mention is that the entire point of filing an application to enforce an order for contact is not to put the other parent in jail or to force them to do community service. It’s to see the child. And yet so unimportant is that goal – the only goal important enough for fathers to file applications – it’s not only ignored by the courts but by the authors as well.
Possibly even more astonishing is the fact that Trinder, et al conclude that the courts are doing a fine job of enforcing their orders, but they never followed up to find out the results of the courts’ actions.
The research design did not include interviews with parents. Thus we have only limited file data on whether and how orders are being implemented.
That the research design didn’t include ascertaining whether the courts’ orders had any effect is quite the large omission given that the study supposedly measures exactly that. And yet it does no such thing.
Trinder, et al cite the relatively low rate of parents in these cases returning to court with renewed applications as indicating that the orders were effective, but it’s painfully obvious that it may indicate the opposite. If Dad tries once to get Mom to comply and all he receives from the judge is an order whose “focus is on clarity rather than an attempt to address any underlying issues,” can we pretend surprise when he doesn’t try again?
Plus, the application fee alone was £200, a hefty sum for many fathers. Add to that the cost to hire legal representation and, if he receives an order that does little or nothing to help him see his child, his refusal to throw good money after bad in the future is all but inevitable.
It’s almost as if the authors judged the courts, not on whether their orders functioned to bring about greater contact between non-residential parents and their children, but on whether proper procedures were followed. That such an approach comes to us wearing the disguise of an actual study to guide policy-makers boggles the mind.
The research team independently rated each case on two criteria: robustness and safety. On robustness we rated the court’s approach as ‘about right’ in the great majority (96%) of cases.
Yet how can they possibly know? They explicitly constructed their study to avoid talking to parents after the court’s order. That means they have no idea whether the order improved contact or not. And yet they conclude that whatever the courts did was, in all but rare instances, the right thing.
That’s a frank acknowledgement that the authors decided what they wanted their study to demonstrate, constructed it accordingly and – surprise! – now tell us that it did so. On the foundation of such fake science is the British system of family courts built.