June 29th, 2012 by Robert Franklin, Esq.
The British Government has announced its intention to push for changes to family law that have the potential to improve fathers’ access to their children and children’s access to their fathers post-divorce or separation. Much has been written about the announcement; here’s Barbara Kay’s take on it (National Post, 6/14/12).
For years, fathers’ rights advocates and others who see the need for family court reform have been agitating for greater access by fathers to their children.
As things have stood for decades, mothers almost invariably get primary custody of the children following divorce with dads assigned the role of walking wallet. That’s been true despite the overwhelming weight of social science showing children need both parents whether or not the parents need each other. The dogged refusal of legislatures and courts to act on that science is one of the great scandals of our time and one of the prime movers of societal dysfunction.
So it was with considerable anticipation that the coalition government of David Cameron and Nicholas Clegg appointed a commission headed by David Norgrove to look into the matter of family law reform and make recommendations. Unfortunately for all, Norgrove dropped the ball. His report, had its recommendations been followed, would have made essentially no change in the ability of fathers and children to maintain a relationship with each other in the wake of divorce or separation. Norgrove was never qualified for the job and his performance showed it. His report hit the dumpster almost before it arrived.
So now we have different recommendations to Parliament from the Tory/Liberal Democratic government. The nut of the matter is two-fold. First, it is recommended that Parliament alter the Children Act of 1987 to require “the presumption that a child’s welfare is likely to furthered through safe involvement with both parents.” Second, the failure or refusal of one parent to allow access can result in significant sanctions. Kay puts it this way:
Furthermore, mothers who refuse to permit access to the children may lose their passports, their driving licences or even their freedom of movement if they fail to comply.
Of course, these are just recommendations; Parliament hasn’t passed anything yet. But assuming the recommendations become law as they’re stated, what might the practical results be? Well, I take a backseat to no one in my admiration for Barbara Kay, but I think she gets it wrong on this one. Kay is very enthusiastic about the recommendations calling them a “radical shake-up of family courts” and “a happy but somewhat shocking development.” I wish I could share her enthusiasm, but I can’t.
For one thing, Kay reads “the presumption that a child’s welfare is likely to furthered through safe involvement with both parents” to mean “in the absence of abuse, equal parenting, exactly the template we have been patiently awaiting in Canada, will be the default for splitting couples.” It doesn’t. ”Involvement” does not mean “equal involvement.” Indeed, “involvement” can easily be construed to mean “every other weekend,” and judges who have so far been loathe to extend any but the most minimal contact to fathers, will be under no pressure to change their ways.
Then there’s that little word “safe” that means so much in custody cases. We all want children to be safe, but allegations of domestic violence or child abuse are now such a routine part of custody cases that it comes as a shock when they’re not made. And of course no one seriously believes that allegations that are first made in the context of divorce have much validity. Indeed, when the chief of the San Francisco Public Defenders Office told his attorneys to take every single allegation of domestic violence to trial, a whopping 71% of defendants were found by juries to be innocent. And those weren’t exclusively child custody issues in which the benefits of fabricating claims of abuse are all too obvious.
So one of the key things that needs to be a part of any family court reform is the requirement that those who make allegations of abuse prove their claims. Until those claims are proven, no prejudice of any kind should accrue to the accused. And those who make false claims should be punished by, among other things, having their own parental access restricted. After all, trying to keep a fit parent from his/her child should be viewed as the child abuse it is.
But the government’s recommendations entirely ignore the pernicious effects of false allegations of abuse.
On the other hand, the sanctions for refusal to grant access look like an improvement over the status quo. Judges should look at those and understand that the government is serious about punishing parents who thwart their child’s relationship with the other parent. Sanctions like loss of a driver’s license, a passport, etc. may give judges the effective power to enforce the orders they make regarding child access.
Still, they’ve always had inherent power to enforce those orders and have refused to do so. As I’ve pointed out many times, all judges have the power to hold those in contempt who violate court orders. They can jail or fine miscreants. Family courts have other powers as well; they can change custody, restrict access, order attorney fees and court costs paid.
But as all know, they don’t. Custodial parents (90% of whom in the UK are mothers) flout access orders with almost complete impunity. They know they can get away with denying access, so many of them do. I assume that’s because, as in Australia, family courts have taken the position that enforcing access orders is beyond their purview. But don’t take my word for it; here’s a letter to the editor of the Daily Telegraph by a former family magistrate in Great Britain (Daily Telegraph, 6/24/12).
As a former family magistrate, I know that some mothers use their children for their own ends, denying access or disregarding court orders so that only fathers with considerable financial resources stand any real chance of spending time with their children (Comment, June 17).
Even when access is achieved, it may be short-lived if the mother breaks court orders, requiring the father to return to court until he runs out of money or loses hope and gives up.
Throughout this chaotic and unaccountable behaviour, small children must grow and develop in a distorted family environment which threatens to alienate their father and the love they share.
Some family judges do see the injustice, but the current system simply fails to provide a remedy.
If enacted into law, will the government’s recommendations have a significant effect on fathers’ ability to maintain a meaningful relationship with their children post-divorce? I doubt it. As long as judges so prefer maternal care to that of both parents, they’ll continue to find ways to accomplish that, and nothing in the recommendations looks likely to alter either their bias or their behavior. I hope I’m wrong, but decades of trying to make even a small impact on custody outcomes by thousands of dedicated advocates backed by mountains of social science on child welfare convince me I’m not. We’ll see.