Study Seeks to Exonerate Family Courts

August 10, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

The study linked to in this blog is dated 2013. I write about it now because it’s emblematic of the pushback family court reform advocates receive from some quarters. It’s a British study and transparently an effort to convince readers that family courts are generally doing a fine job, ergo, no change is necessary. Here in the U.S., we get the same claim about shared parenting from family lawyers who sometimes stoop to say that we don’t need new laws because hey, courts are already ordering shared parenting without them. The fact that there’s no evidence for the proposition and plenty to rebut it hinders the anti-reform crowd not a whit.

Seeking to succeed where the Yanks have failed, the British study is an effort to manufacture evidence where otherwise there is none. It’s fails miserably.

The topic under consideration is whether British courts do enough to enforce their orders for access to the child by the non-resident parents. The authors’ conclusion? Of course they are. Nothing to see here, move along.

The first indication we have that this is a defective study comes from the fact that it was paid for by the Nuffield Foundation and conducted by veteran anti-reform advocate Liz Trinder. Readers may recall that back in the early days of the Cameron/Clegg administration, there was some thought that perhaps British family courts should be required by law to treat fathers and mothers equally. Thus Nuffield plunged into the fray with a white paper opposing such a dangerous notion. So intellectually bankrupt was that publication that it didn’t cavil at citing the oft-debunked work of Jennifer McIntosh for its support.

The second indication comes in the definitions fashioned by Trinder, et al. They divide cases in which the non-resident parent seeks court enforcement of its access order into four categories, Conflicted, Risk, Refusing and Implacably Hostile/Alienating.

Conflicted means roughly that the parents can’t get along, Risk means that one party has alleged some form of violence or risky behavior such as domestic violence or child abuse. Refusing means the child refuses contact for a legitimate reason. Finally, Implacably Hostile/Alienating means that the resident parent can be described as such.

So what’s the problem with those categories? Well, most obviously, they’re in no way exclusive, i.e. the behaviors in one can occur in another or even all three others. Therefore, the authors’ most urgent conclusion – that few mothers are implacably hostile or alienating – may or may not be true. Mothers involved in cases in the other three categories may well be exactly that.

Consider the category of “conflicted.” “Intense competition or chronic levels of mistrust between the parents mean that they are unable to work together to implement the court order. Both parents have greater or less responsibility for the conflict.” In other words, the conflict that results in an inability to co-parent may be all or mostly the fault of one parent. If Mom dogmatically refuses access and Dad gets angry about it, there’s conflict, but it’s unilaterally brought about by one parent. Does Mom not qualify as implacably hostile or alienating? She certainly could, but the authors want us to believe that each of these categories comes hermetically sealed off from the others.

Much is conveniently left to the authors’ interpretation. For example, when the child refuses contact with the non-resident parent, “The resident parent may be neutral or negative about contact but the child’s decision appears genuinely to be their own opinion rather than a simple reflection of the resident parent’s position.” Of course the people to whom the child’s decision “appears genuinely to be their own opinion” are lead author Liz Trinder, et al. If they wanted a particular outcome, that’s one good way to get it.

More importantly, the key to figuring out whether parental behavior constitutes alienation is whether the child’s response is appropriate to the situation. If the child’s refusal to spend time with one parent is an appropriate response to an unfit or abusive parent, then he/she hasn’t been alienated.   If there’s no legitimate reason for refusing access, the child may well be alienated.

The point being that even mental health experts, educated in parental alienation and able to personally interview parents and child alike often have difficulty telling appropriate refusal from alienation. But Trinder, et al tell us they can do the job simply by looking at the files in a few cases. They can’t and they probably know it. They just hope readers don’t.

The conclusion that Trinder, et al are simply seeking to validate a preconceived narrative of family courts behaving properly when faced with efforts to get them to enforce their orders is bolstered by the fact that 70% of the cases in which a parent sought a court’s enforcement of access, were due to “contact breaking down completely.” Given that, plus the fact that 86% of all the cases were brought by fathers, we come perilously close to concluding that in fact, Trinder’s sunny outlook on child access is seriously misplaced.

I’ll have more to say on this next time.

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