New Rule in British Family Courts Negates Statute, Ignores Evidence

February 8, 2017 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

Not long ago, I did a couple of pieces on the outrageous new rule adopted by senior family court judges in the U.K. to guide the deliberations of all family judges there. The new rule will require judges to deny contact between fathers and their children where there is an allegation (and perhaps some proof) of domestic violence. Such, at any rate, is the way the new rule was reported. As I said in my first piece on it, surely the rule will be written in gender-neutral language, but whether it is or isn’t, the gist of it is clear – it’s aimed at fathers, not mothers.

Further, what quantum of proof will be required to remove a father from his child’s life remains unclear. Is an allegation sufficient? Is a bruise anywhere on the mother’s or child’s body enough? Who knows?

And of course the whole shoddy thing resulted from yet another shoddy thing – a report by the notoriously anti-male/anti-father organization, Women’s Aid. It found that, over a 10-year period, 19 children in 12 families had been killed by their fathers. That’s within a total population of divorced dads of about 1 million. To many of us, the new rule is a reform searching for something to reform.

But however one might view the need, what Women’s Aid never said, and apparently the senior judges never thought to ask is how many children were killed by their mothers over the same period. You’d think that would have been germane to their deliberations, but apparently not. I figured that, if the U.K. were anything like the United States, more children would have been neglected, abused and killed by mothers than by fathers. But those kids seem not to matter either to the judges or to Women’s Aid.

Now we have this blog posting that adds important considerations to the issues raised by the new rule (Marilyn Stowe Blog, 2/3/17). Most importantly, the judges seem to have taken it on themselves to simply negate statute law. As the Guardian article I linked to said, “Senior judges are taking steps to end the presumption that a father must have contact with a child where there is evidence of domestic abuse that would put the child or mother at risk.”

There’s just one problem with that; the presumption that a child have contact with both parents is written into the statute governing custody and parenting time post-divorce.

[Justice Cobb] recently proposed an effective end to the paramountcy principle – the overarching golden rule in family proceedings that the best interests of the child are paramount. But not content with demolishing the corner stone of the system, it looks as though he may believe the family courts can overrule the will of Parliament too.

That presumption is that the best interests of the child are presumed to be served by having contact with both parents.

[T]he presumption that involvement of the other parent will further the child’s welfare [is] set out in section 11 of the Children and Families Act 2014.

So not only did the judges establish a new rule that would, on the slimmest of pretexts, give mothers essentially complete power over children’s rights to access to their fathers and fathers’ rights to access to their children, they also vetoed the plain terms of a statute passed by Parliament. That’s quite an accomplishment for people who are supposed to know something about the law. Put simply, judges don’t have the power to do that.

Now, the writer of the blog piece, Paul Apreda, might pause to remember that, whatever the law may say, family courts routinely ignore the best interests of children in their decisions on parenting time and custody. Yes, fathers are supposed to have access to their kids, and vice versa, but nowhere does the law say for what period of time. And every other weekend is the default position for fathers’ seeing their kids following divorce or separation. That’s not in children’s best interests as plenty of social science reveals, but the courts do it anyway. So yes, children’s best interests are supposed to be judges’ paramount concern, but they’ aren’t, irrespective of the mantra intoned by those judges.

And what about those mothers who kill their children but who aren’t the subject of the new rule? It looks like I was right.

In his report The Honourable Mr Justice Cobb mentions that he looked at the Women’s Aid Nineteen Child Homicides report, yet he seems unaware of the 330 Child Homicides report, drawn from a much wider sample of cases that were subject to Serious Case Review from 2009-2015. This suggests that mothers are more likely to be culpable for child deaths than fathers.

And of course children’s deaths are just the tip of the proverbial iceberg of the type of child abuse that ought to affect judges’ decisions about child custody. Mothers do more of that type of abuse than do fathers, but, according to Women’s Aid and Justice Cobb, family court judges aren’t supposed to think about the fact.

Apreda lets us know that the claims by Women’s Aid that Cobb swallowed whole were in fact even less reliable than I thought.

Furthermore he repeats the claim made by Women’s Aid that 39 per cent of women were physically abused by their former partner in the Family Court.

Lucy Reed – Chair of the Transparency Project – has questioned the reliability of the data offered by Women’s Aid. It seems that the figures were produced from a self-selected sample of Women’s Aid service users, amounting to 90 individuals.

That’s the type of nonsense we used to see in this country when the likes of Jaffe and the Dobashes were trying to convince all and sundry of claims about domestic violence that just weren’t true. Selecting women from DV shelters and pretending that their experiences are in some way representative of the population generally is intentionally bad science. It’s meant to mislead. Amazingly, Women’s Aid got away with doing exactly that and some of the most senior judges in the U.K. endorsed their doing so.

Finally another assertion from Women’s Aid is also taken on board by Mr Justice Cobb. The much repeated problem of men continuing their abuse of women by making applications to the Family Court. Let’s just analyse that for a moment. How many applications are deemed to be an abuse in this way? Ah, we have no figures for that. Also, what criteria will be applied to determine whether these men’s applications are motivated by a desire to control, coerce or harass? Again – no information on this.

So the fact that there is no evidence whatsoever for the proposition that men generally (but not women) use family court procedures to abuse their exes didn’t deter Cobb, et al one whit from instructing judges to “ensure that the court process is not used as a means to perpetuate coercion, control or harassment by an abusive parent.”

Now, I don’t know for certain, but I suspect that the British, like us Americans, have a basic right to, as we say here “seek redress of grievances.” That is, we have a right to, among other things, go to court to complain about justiciable matters and seek orders correcting same. Cobb’s new rule strongly suggests that he believes that he can unilaterally diminish that right.

Thanks to Paul Apreda for shedding still more light on this unconscionable diminution of the rights of children and fathers.




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National Parents Organization is a non-profit that educates the public, families, educators, and legislators about the importance of shared parenting and how it can reduce conflict in children, parents, and extended families. Along with Shared Parenting we advocate for fair Child Support and Alimony Legislation. Want to get involved?  Here’s how:

Together, we can drive home the family, child development, social and national benefits of shared parenting, and fair child support and alimony. Thank you for your activism.

#domestic #violence, #childabuse, #fathers’rights

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