Category Archives: Uncategorized

Irish law – distinguishing ‘separation’ from ‘desertion’

Irish divorce information

Separation v Desertion. What’s the difference ?

 Facts about desertion; What everyone should know

By Roger Eldridge, Chairman, National Mens Council of Ireland and Executive Director, Family Rights and Responsibilities Institute of Ireland

 NB. This is not applicable to English law, however these words by David Hodson of the Centre for Social Justice are applicable to both the Irish and English experience:

  • “It might be said that it is perverse for a divorce lawyer and family court judge to be espousing laws and policies which will reduce family breakdown, and with it the need for such services. Like most family lawyers, I have seen at first hand too many of the consequences of family breakdown and too many consequences of the impact on children. If one result of these proposed reforms is less need for divorce lawyers then most in society will rejoice!”

CHAIRMAN’S FOREWORD – David Hodson, Chairman of the Family Law Review,
Centre for Social Justice, UK .

It is very clear when discussing their difficulties with callers to our help-line [National Mens Council of Ireland] that many Spouses – men in particular – are very confused about the difference between separation and desertion. This is not their fault as the legal profession have made it their business to eliminate the word and concept of “desertion” from all family law proceedings. I sat in with a member of Tréigthe – our Deserted Spouses & Marriage Reconciliation Self-Help Group – when he went to discuss with his solicitor what he could do.

Despite the facts supporting it, whenever he described himself as being “deserted” his own solicitor got very cross with him and told him that the judge would be very angry if he ever said anything like that in court. When he tried to talk about it further his solicitor told him that she will not represent him if he ever used the word again!

Hopefully the information given below which has been taken directly from three different legal sources will clear people’s heads and stop them mistakenly believing they are “separated” when really they are “deserted”.

The reason why solicitors create this confusion is because they have been assisting Spouses who are the deserter to profit at the expense of the actual deserted spouse for the past thirty years [in Ireland only].  They tell the deserted Spouse that the other Spouse – the actual deserter – is entitled to separate and tell them that they should just accept that they are now “separated” and deal with it. By doing this the deserted Spouse loses everything and especially is seen to be going along with the breakdown of the Marriage instead of getting help to reconcile it.

Some of the most important aspects of family Law are the provisions for maintenance. It is a duty of Spouses to maintain the Family home and the other Spouse and children living there. If one of the Spouses deserts the family they are still held to this duty and are forced to pay money for the maintenance of the deserted household. Logically and in the statute there is a bar to a deserter receiving such maintenance. 

However, the law is being operated by solicitors so that the Husband is always the one ordered to pay maintenance to his wife regardless of who is guilty of desertion. This creates an ever lengthening queue of wives outside solicitors’ offices who are led to believe that they can just walk out on their Marriage and still be kept in the style (or better!) they were when they were acting as a wife in the home. They are told to ensure they keep the kids with them and refuse to let them stay at home even though the law presumes that the children should be at home. This has been used for many years as a sort of “grey area” which is used to justify the “legitimise” the deserter and get money from the deserted spouse for the maintenance of the children. Solicitors advise their deserted clients to pay this money even though it is against their best interests and those of the children in the long run.

In all of this confusion and corruption of the law any chance of a Reconciliation of the Family is buried in anger and injustice. This has to stop.

Please pass the information below to anyone you know who is having problems in their family (i.e. by now almost everyone!) and let them know that we are available to talk to them and assist them to resist the worst practices of the courts. This is the necessary first step before moving on to the more important one of helping them to reconcile their Marriage. When leaving a marriage doesn’t bring instant rewards it gives people a chance to rethink their plans. It is this critical period of time that needs to be seized upon if we are ever to stop the wanton dismemberment of families and destruction of society.

E N D

See below for more references.

Roger Eldridge is Chairman, National Mens Council of Ireland (National Office: Knockvicar, Boyle, Co. Roscommon, Website: www.family-men.com  Email: familymen@eircom.net      Tel:: 00353 (0) 7196-67138           00353 (0) 83-3330256).

http://www.the-divorce-directory.com/article_desertion.html

DESERTION

Desertion, known in some states as ‘abandonment,’ is considered grounds for divorce in states that have fault divorces. There are two types of desertion, actual desertion and constructive desertion. Both types of desertion must be continuous and uninterrupted for a specific period of time between one and five years depending on the state.

The most obvious situation which would constitute desertion is when one spouse leaves without a trace, never comes back and never again makes contact. However, there are other situations which constitute desertion.

Desertion vs. separation
Desertion is not the same as separation. In a separation both spouses consent to living apart. Desertion only occurs when one spouse does not consent to the separation.

The necessary elements to establish desertion include:

  •           No longer living in the same residence
  •           No longer having sexual relations
  •           Deserting spouse intends to end the marriage
  •           Deserting spouse was not justified in leaving the residence
  •           Deserted spouse did not consent to the desertion
  •           Desertion has been continuous and uninterrupted for the amount   of  time designated by law in your state

Actual desertion vs. constructive desertion
In actual desertion the deserting spouse leave the home. Constructive desertion occurs when the deserted spouse leaves due to unbearable conditions at home caused by the other spouse. Combined with the above elements of desertion, depending on the state, conditions for constructive desertion can include:

  1. Physical abuse
  2. Mental cruelty
  3.  Adultery
  4.  non-support
  5. Unjustified refusal to have sexual relations for a significant period of time
  6. Knowing transmission of a venereal disease

Couples contemplating divorce should be cautious about moving out of the residence in a manner which can be claimed as desertion. To avoid a claim of desertion both parties must agree to the separation and should provide each other with contact information.

The desertion period must be continuous and uninterrupted. One night spent under the same roof or one meeting for sexual relations can be considered an interruption in the desertion period, and the required length of time would start over after that date.

Exceptions
Unintentional abandonment is not considered desertion. If a spouse goes missing for a specified period of time, and efforts to find the spouse are unfruitful, the abandoned spouse may obtain a divorce. However, situations such as military personnel missing in action do not constitute desertion.

Desertion Grounds

Desertion must be proven by a preponderance of the evidence.  There are two main elements to prove to establish abandonment/desertion grounds for divorce; (1) the actual breaking off of the matrimonial cohabitation (abandoning the usual marital duties, not just sexual intercourse must be established), and (2) the intent to desert the marriage.

The breaking off of matrimonial cohabitation means that the couple must actually have separate addresses, and not just maintain separate sleeping arrangements.  Ceasing to engage in sexual intercourse, even without just cause, does not constitute desertion.  But where there is a significant abandonment of marital duties, which results in practical destruction of home life, a party may be guilty of desertion.

 The second element to establish abandonment/desertion is the intent to desert the marriage. The desire to separate is not necessarily synonymous with the intent to desert the marriage. Where the parties separate by “mutual consent,” neither party has established grounds for desertion.  If the person deserting cannot legally justify the desertion, then proof of the actual breaking off of the matrimonial relationship with the intent to desert entitles the other spouse to a divorce. 

“Constructive desertion” involves actions or conduct resulting in the other spouse’s forced separation.  To prove constructive desertion, the spouse leaving the home must prove that the misconduct by the spouse remaining in the home constitutes grounds for divorce. Traditionally, this spouse must show that the remaining spouse conducted himself/herself in such a manner as to provoke the leaving.

It should be noted that excessive alcohol consumption is not sufficient, standing alone, to constitute constructive desertion, nor is demanding that a spouse leave is not constructive desertion. Generally speaking, a spouse is not justified in leaving the other just because there has been a gradual breakdown in the marital relationship or because the parties are unable to live together in peace and harmony. The party claiming justification for leaving has the burden of proving it, unless the justification appears from the testimony given by the other party.

Defenses to desertion include (1) agreement, (2) recrimination, (3) justification, (4) pending divorce case, or (5) relocation of spouse.

Agreement:  When the separation is by consent or agreement, or is acquiesced to by the other spouse, there is a presumption that the separation by consent continues until a spouse withdraws the consent and offers to resume the cohabitation.  Refusal without justification will give rise to desertion.

Recrimination:  Where the deserted party as well as the deserting party is guilty of a fault ground, the deserted party is barred from a divorce on the grounds of the desertion.

Justification:  Where there is violence, even thought the acts do not amount to cruelty, there may be a sufficient basis to constitute a fault ground for divorce.

Pending divorce case:  A spouse is not guilty of desertion where the leaving takes place after the divorce case has been instituted and during the pendency of the case.

Relocation of spouse:  A spouse is no longer expected to follow the other spouse’s change of abode, and the refusal to follow to relocate is not desertion.

Ref. http://legal-dictionary.thefreedictionary.com/desertion

DESERTION

The act by which a person abandons and forsakes, without justification, a condition of public, social, or family life, renouncing its responsibilities and evading its duties. A willful Abandonment of an employment or duty in violation of a legal or moral obligation.

Criminal desertion is a husband’s or wife’s abandonment or willful failure without Just Cause to provide for the care, protection, or support of a spouse who is in ill-health or necessitous circumstances.

Desertion, which is called abandonment in some statues, is a Divorce ground in a majority of states. Most statutes mandate that the abandonment continue for a certain period of time before a divorce action may be commenced. The length of this period varies between one and five years; it is most commonly one year. The period of separation must be continuous and uninterrupted. In addition, proof that the departed spouse left without the consent of the other spouse is required in most states.

Ordinarily, proof of desertion is a clear-cut factual matter. Courts generally require evidence that the departure was voluntary and that the deserted husband or wife in no way provoked or agreed to the abandonment. Constructive desertion occurs when one party makes life so intolerable for his or her spouse that the spouse has no real choice but to leave the marital home. For an individual to have legal justification for departing, it is often required that the spouse act so wrongfully as to constitute grounds for divorce. For example, a wife might leave her husband if she finds that he is guilty of Adultery.

In desertion cases, it is not necessary to prove the emotional state of the abandoning spouse, but only the intent to break off matrimonial ties with no ‘animus  revertendi’, the intention to return.

Mere separation does not constitute desertion if a Husband and Wife agree that they cannot cohabit harmoniously. Sexual relations between the parties must be totally severed during the period of separation. If two people live apart from one another but meet on a regular basis for sex, this does not constitute desertion. State law dictates whether or not an infrequent meeting for sexual relations amounts to an interruption of the period required for desertion. Some statutes provide that an occasional act of sexual intercourse terminates the period only if the husband and wife are attempting reconciliation.

Unintentional abandonment is not desertion. For example, if a man is missing in action while serving in the Armed Services, his wife may not obtain a divorce on desertion grounds since her spouse did not intend to leave his family and flee the marital relationship. The Common Law allows an individual to presume that a spouse is dead if the spouse is inexplicably absent for a seven-year period. If the spouse returns at any time, the marriage remains intact under common law.

Laws that embody the Enoch Arden Doctrine grant a divorce if evidence establishes that an individual’s spouse has vanished and cannot be found through diligent efforts. A particular period of time must elapse. Sometimes, if conditions evidencing death can be exhibited, a divorce may be granted prior to the expiration of the time specified by law.

In some jurisdictions, the law is stringent regarding divorce grounds. In such instances, an Enoch Arden decree might be labeled a dissolution of the marriage rather than a divorce.

Upon the granting of an Enoch Arden decree, the marriage is terminated regardless of whether or not the absent spouse returns. Generally, the court provides that the plaintiff must show precisely what has been done to locate the missing person. Efforts to find the absent spouse might include inquiries made to friends or relatives to determine if they have had contact with the missing spouse, or checking public records for such documents as a marriage license, death certificate, tax returns, or application for Social Security in locations where the individual is known to have resided.

References:

  • Desertion is frequently coupled with non-support, which is a failure to provide monetary resources for those to whom such an obligation is due. Non-support is a crime in a majority of states but prosecutions are uncommon. See “West’s Encyclopedia of American Law”, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
  • desertion n. the act of abandoning, particularly leaving one’s spouse and/or children without an intent to return. In desertion cases it is often expected that a deserter who is the family breadwinner may not intend to support the family he/she left. Such conduct is less significant legally in the present era of no-fault divorce and standardized rights to child support and alimony (spousal support). Desertion can influence a court in determining visitation, custody and other post-marital issues. – See  Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill.
  • desertion noun abandonment, abandonment of allegiance, abjuration, absence without leave, act of   forsaking,  apostasy,  AWOL,  defection,  departure, dereliction,  disloyalty,  flight,  forsaking,  forswearing,  leaving,  mutiny,  quitting,  recreancy,  renouncement,  renunciation,  repudiation,  resignation, secession, unlawful departure, willful abandonment.
    Associated concepts: constructive desertion, willful desertion, See also: absence, dereliction, disloyalty, flight, infidelity, revolt, schism, sedition – See “Burton’s Legal Thesaurus,” 4E. Copyright © 2007 by William C. Burton.
  • DESERTION, torts. The act by which a man abandons his wife and children, or either of them. 
         2. On proof of desertion, the courts possess the power to grant the ‘Wife, or such children as have been deserted, alimony (q.v.)
  • DESERTION, MALICIOUS. The act of a husband or wife, in leaving a consort, without just cause, for the purpose of causing a perpetual separation. Vide Abandonment, malicious. – See “A Law Dictionary, Adapted to the Constitution and Laws of the United States.” by John Bouvier. Published 1856.

E N D

Advertisements

The 14% father

 Response by Men’s Aid to the

Dept for Work Pensions Green Paper (Jan 2011)

(proposed changes to the Child Support payment structure)

“Strengthening families, promoting parental responsibility: the future of child maintenance” 

 

  • Men’s Aid is a registered charity supporting men’s and fathers’ civil rights and promoting equality before the law.
  • Men’s Aid values fatherhood and supports the concept of equal parenting allowing parents to work together for, and in the best interests of, their children.Germany_pic
  • Men’s Aid provides free information and advice to parents who are seeking to maintain a meaningful and responsible relationship with their children after family breakdown or divorce

Contents::

  1. Executive Summary
  2. Introduction
  3. Question 1
  4. Question 2
  5. Question 3
  6. Conclusion
  7. Appendices

Executive Summary

We have been pleasantly surprised by the overall vision, tone and content in this consultation paper. There is much to commend and we sincerely trust that the ambitions outlined will reach fruition.

How we arrive at the 14% figure is the  typical amount of time the courts allow a  father to see his child per annum (14% of 365 days) and it is for this  reason that this article  is entitled “The 14% father” (see ref ‘Henshaw’s 2006’ below).

We freely admit that Men’s Aid, as an advocate of men’s and fathers’ rights, has previously felt reluctant to fully support other government measures. Principally, the reason was because we saw the legislation in question as benefiting only mothers (and only slightly children) and to the exclusion and disadvantage of fathers.

Compared with those earlier papers this 2011 paper appears to thrown open the shutters and partially redressed the imbalance.

The obstacle to a smooth resolution of CS difficulties is not money but has always been that of ‘custody’ with all its power ramifications (this is true of all counties).

Where a mother, upon divorce, is in effect ‘guaranteed’ custody then fathers are being discriminated against. Paying to be discriminated against (CSA) in unpleasant.

Footnote No 65 in Henshaw’s 2006 report states that

  • “Under the new scheme, shared care is when a non-resident parent has overnight care of their child for at least 52 nights a year. Maintenance is reduced accordingly.”

Fifty two nights amounts to 14% of a calendar year. If Henshaw is suggesting that 14% is the lowest threshold that will trigger maintenance credits for shared care one has to ask why ? We have always advocated true equality. For us, the goal must be that where it is possible, fathers should firstly enjoy 25% of their children’s time within the next few years with the longer term goal being 50%.

Single fathers with custody of children have found obstacles placed in their path. Payments of basic state benefits due to them are more difficult to achieve, e.g. the care component in Jobseekers’ Allowance (JSA). [1]

The payment of Child Benefits to fathers is also impossible. The head of the Child Benefit Policy section, Spawson, reported in 1999 that the DWP computer system (circa 1975) was the reason Child Benefit could not be paid to two parents when custody was shared. So ‘shared parenting’, legally possible since 1991, was defeated by an elderly computer. For the DWP’s 2011 vision to be realised these administrative shortcomings need to be addressed.

Fathers deserve the same level of consideration that is extended to mothers and in one or two areas it looks as if the present deficit will be addressed by the coalition government.

Governments have previously claimed that it was impractical to link ‘performance related contact’ by the mother with ‘performance related payment’ by the father, i.e. Child Support (CS).

As a result CS payments have been seen as largely separate from visitation (‘contact’), or visitation rights. In response to this bias Men’s Aid has, in the past, supported the link between child support payment and access as a means towards a quid pro quo for fathers.

All that has now changed with the promise of ‘shared parenting’ as the future default custody position. The freedom, given in this Green Paper, for parents to arrange their own CS free of state interference is also to be welcomed.

With the pre-condition of better custody and parenting time for fathers all but met and agreed, better progress can be made regarding CS.

The transformation will not be total and nor will it be overnight. We should be planning to reach the Swedish standard of father participation and care within 5 years. Swedish fathers account for 26% of single parents looking after children (see European Parliament, British MEP Marina Yannakoudakis). In England at present the figure is around 2%. If the figure does not reach 25% by 2016 this Green Paper will have failed

Paradigm shift

Where a universal statutory collection system no longer exists to subjugate either parent and no automatic sole custody exists to exclusively benefit one parent, a paradigm shift can be said to have occurred. Stripped of the procedural straight jacket, it suddenly becomes possible to de-couple child support from custody and for both parties to become ‘winners’ in a freer, more flexible market.

With shared parenting in place and agreed beforehand, the subsequent negotiations regarding levels of CS payments will be free of rancour and gamesmanship. Money the state now pays to finance court time will reduce as cases coming to court will already have been agreed by both parties. This is the experience of other governments, e.g. Australia, Sweden, Belgium.

Transparency

The proposed introduction of the Universal Credit to replace the plethora of smaller state benefits will assist matters. It is proposed that benefits such as working tax credit, child tax credit, housing benefit, child benefit, income support, jobseeker’s allowance and income-related allowances will all be merged into one universal state credit.

Everyone will know what the value of the benefit will be and there will not be some mothers getting more than others. Under the proposed new CS scheme mothers will have access to additional income through private ‘informal payments’ that fathers make to them directly. In the past these were not counted for CSA purposes which aggrieved both mothers and fathers.

One of the worst features of the earlier regime has also been addressed, namely that of the government collecting money from fathers and pretending to the public that it was forwarded to the mother of the child when in fact it merely off-set the Treasury’s cost of benefits and running the CSA system.

In some areas the present Green Paper’s envisaged CS payment structure looks short on detail but if it encourages both parents to go out to work and be self-reliant it should be judged as more than reasonable.

Under the proposed changes we foresee the possibility where if one parent works full-time and the other part-time (yet they share the child’s time equally), the flexibility will allow CS to reflect this.

Enlightened view

Child maintenance payments have been used perniciously in the past and they have pushed fathers into long-term debt (10 to 15 years), suicide (permanent), and condemned them and their new families to lifelong poverty.

Governments and Whitehall Dept have preferred to remain deaf to pleas for them to urgently address policies that were diametrically opposed to one another and clashed with other government targets. Examples of contradictory messages and policies abound but three instances we cite include the Divorce Reform Act 1969, UNICEF and promoting families.[2]  The former was intended to increase remarriage but where numbers are stalled; child poverty meant to be eased by various state benefits has worsened in the last 10 years; and promoting families as the best option I n which to raise child has seen marriage rates at their lowest in living memory.

Is it enlightenment of simply an excuse to claim, whenever challenged, that a child’s best interests are paramount ? See how quickly the pretence is abandoned when a same sex couple or an unmarried couple apply for IVF treatment.

Where is the child’s right then to know both its parents ?

Outcomes

For many years fathers groups (the Fathers Rights Movement) have been lone voices demanding that “outcomes” alone should drive policy. So we welcome the adoption of the need to put ‘outcomes’ ahead of ideology or political dogma.

The best ‘outcomes’ for children is when they see their father and feel part of their father’s lives. The worst outcomes are when children are deprived of any input from their father.

For more than a decade our focus, in submissions to government, has been on the need to determine policies based on the proper interpretation of “outcomes” – not on a misuse of outcome where it is used to mean an immediate post-event ‘result’ The term ‘outcomes’ should be properly used to define downstream outcomes of, say, 10 or 15 years hence.

There is an indication that government is at last recognising this distinction (Para 3, “childhood is reflected in adulthood”). If this is now the Department’s definition then we fully endorse its approach to what is a difficult problem.

A 2007 Green Paper on joint birth registrations appeared to make the connection between fathers and children. [3] However, later in the present document the clarity of the connection appears to become blurred.

Shortcomings

If there is a serious criticism to be made it is regarding the state’s continuing generosity to mothers and its paucity towards fathers. Whether married or divorce ‘parent-with-care’, i.e. mothers, still receive funding (via husbands or the state). When married the money paid by the fathers is subject to a married man’s tax allowance reflecting in part his child support obligations. However, a divorced father funding his children in the same way is not entitled to any tax reliefs and so the burden of funding is disproportionately greater.

There is no attempt to deal with the issue of travel costs. These can be considerable when a mother moves to the other end of the country. The CSA regime expects the father to pay to bring up the child and to pay again to actually see the child. There is no mechanism to deduct his fortnightly Glasgow to London rail fare from the rigid demands made by the CSA.

Having at last recognised the validity and value of ‘informal payments’ there is no hint of retrospective reimbursements. Informal payments were raised in the 2006 report but not acted upon.  The result is that 5 years have passed when punitive action has been taken against former husbands.

The Achilles heel of CS regimes the world over is the new boyfriend’s income conundrum. Policy appears to be still to ignore it and put the first family’s needs ahead of a subsequent family’s requirement.

In so doing it adds to the ‘trapped in aspic’ scenario of relationships today and perpetuates child poverty. The full impact is felt by second wives and the children of those subsequent unions.

The consequence of this lack of joined-up thinking is that marriage, divorce, illegitimacy (out of wedlock births), joint birth registrations, cohabitation, CSA, and custody matters are all misguidedly seen and dealt with as if they lived in discrete individual boxes.

Introduction

We are in full agreement with the ambitions stated in the opening lines of the ministerial Foreword. The ambition of Men’s Aid and other pro-father groups map exactly on to the ideals expressed.

This is a radical Green Paper that re-shapes ‘statutory child maintenance’ into one that has a human face and is of human proportions. Rigid, centralised control characteristics are replaced by a model that recognises relationships and families are organic and though multifarious all share common elements. This Green Paper realises that lasting arrangements can only succeed where collaborative agreements are freely entered into by parents – not imposed from on high.

We therefore embrace the papers desire that families should be “empowered to take responsibility for the welfare of their children” – not the state – and that parental “responsibility is multi-faceted.”

We agree with the Foreword that “separation is a time when families are more likely to need support” and there is a need “to ensure that families receive the support they need through this difficult period.” One wonders what form such intervention will take once parliamentary approval is gained. We foresee this requiring special mediators and the need to recruit/train sufficient numbers – a situation faced when the ill-fated FLA 1996 (Family Law Act), was enacted.

We are fully behind the stated policy objectives of supporting parents so that they can continue to co-parent (but not if this means a sole custody environment). [4]

We have some reservations about the cost and effectiveness of a ‘mediation service’: how will it be funded and who will be qualified to be mediators ? Not all families need support and we would not like to see intervention made mandatory when (and where) it is not needed. This has implications for the number of mediators required.

Previous CS (child support) legislation has left no scope for the liable parent, i.e. the parent who has to make the financial payments. The liable parent can make no any decisions on how his CS is spent. We would like to see parents account for their spending and if the Green Paper achieves this it will be represent an equality milestone.

We agree that parental responsibility and obligations continue even when parents live apart or when their relationship breaks down. It is for this reason that we see shared parenting as the only guarantee of continuing parental responsibility and obligation. Shared parenting is shown to be a helpful and positive influence on a child’s growing up.  

For many years fathers groups worldwide (collectively known as the Fathers Rights Movement), have been the lone voice demanding that “outcomes” alone should drive policy. We therefore welcome the adoption in the paper of ‘outcomes’ replacing ideology or political dogma.

The best ‘outcome’ for children is when they see their father as often as their mother and feel part of both their father’s lives and their mother’s lives. The worst outcomes are where children are deprived of any input from their father.

For over a decade our focus in submissions to government has been on the need for policies to be based on the proper interpretation of “outcomes” and robust empirical research – not on a misuse of outcome where it is used to mean an immediate post-event ‘result’ or research that is ‘fashionable’.

The term “outcome” when properly used defines downstream measurable data of, say, 10 or 15 years hence, and which are unambiguous and objectively measureable.

Shared parenting will augment the medium to long term outcomes with enhanced longer term outcomes measured in better morbidity and mortality rates.

There are indications that government is recognising this distinction (Para 3, “childhood is reflected in adulthood”), but later in the document the definition appears more blurred.

If outcomes are now the Department’s new guiding light then we fully endorse its approach to what is a difficult problem.

Fathers are ‘family’ too

In seeking to promote best ‘outcomes’ for families and children Consultation Papers are increasingly realising that fathers are just as much a part of families as mothers. Much of the Consultation Paper talks about families and children but the subtext is that benefits mostly accrue to mothers and children who are referred to as ‘clients’ This is the first of a number of serious shortcomings in the language used and the approach of the Consultation Paper. If mothers are seen as clients of the CSA apparatus then we suggest fathers are the overall clients as they finance everything (they pay the piper).

It is revealing that in a field abutting Child Support (and hard by its implications for parents), is the matter of birth registration. Government has long seen the need to encourage joint birth registration as a means to “promoting parental responsibility” (DWP Paper Reference: Command 7160, Session 2007 http://www.official-documents.gov.uk/document/cm71/7160/7160.pdf ). In the past official documents have not been even handed; problems centered around women are described as ‘experiences’ to be shared and understood by the whole of society. Problems centered around men are never described in these benevolent and sympathetic terms. The result is a two tiered approach to problem solving.

Take as an instance the matter of registering a birth to a single mother. Nowhere is there the right or expectation of the putative father to register the birth (historically the father’s role). He has to do it in conjunction with the mother.

Further, a mother is not obliged to tell the father of his new fatherhood status. However, this does not obviate his obligation to pay CS at a later date (and at a time of her choosing ?).

The default position should be that it is solely the father’s responsibility to register a child’s birth within 14 days of its birth, subject to extenuating circumstances. Failure to tell a father of his new fatherhood status will forfeit the right to claim CS at a later date.

DNA & Paternity

Indeed, as the above 2007 DWP reference paper recognises, the whole process of birth registration and single mothers can get very complicated. Something very relevant to this Green Paper is one of the three options it outlined where the mother was unsure who the father actually was (“mother was unable to identify the father”).

There is no need to dwell on the reason why some mothers these days are unable to identify the father of their child but it has knock-on effects when demands for CS are made. The ability to question and seek proof of paternity through DNA at the father’s instigation is vital to any well run CS regime. Restricting that right to mothers and giving mothers a veto – as is presently the case – makes a mockery of the whole CS concept.

By omission (if not commission), the state is complicit in ‘taxing’ putative fathers when proof of liability has not been established. The mother’s right to ask for DNA testing should be extended to fathers. In possibly thousands of cases this would clear their name (and liability). This would also ‘decriminalise’ innocent men.

The third of the three options in the 2007 DWP reference paper is the deliberate decision of the mother to exclude the father from the birth certificate. [5] This should not be allowed or tolerated. A child has the right to know both of its parents.

Having accepted the importance that DNA can play in properly identifying the putative father it is extraordinary that its use is dictated by gender. There appears to be nothing in the Green Paper to rectify this continued discrimination against fathers.

Paternity mis-assignment remains a smouldering issue and has been mismanaged for over 20 years. It is the elephant in the room. Someone has to speak out sooner or later as the magnitude is truly shocking. As far back as the early 1970s, a schoolteacher in southern England asked his science class to work out their blood group by reference to their parents’ blood types. In 30% of cases the pupils discovered that their ‘fathers’ could not in fact be their biologically fathers. [6]

A British survey conducted between 1988 and 1996 by Robin Baker, a former professor at the University of Manchester, confirmed the more normally accepted figure of 10%. However, Dr. Lipton, a psychiatrist with the Swedish Medical Center in Washington stated in 2001 that:

  • “Between 30% and 50% of women cheat on their partners, compared with 50% to 80% of men.” [7] 

The American Association of Blood Banks reported, circa 2001, that 30% of men who ‘suspect’ they are not biological fathers are later proven to be correct. In Britain, with its National Blood Transfusion Service these manifest shortcomings are not as obvious as there is no need to use one’s own blood to reduce medical bills.

Given that there are literally millions of children in Britain aged between 1 and 16 years old, both a 10% and a 30% figure for false paternity represents a colossal number. By improperly deducting money from a named person who is not the biological fathers of the child the state is embezzling millions of pounds per annum.

As part of the Fathers Rights Movement, we have long argued, even when it was unfashionable, that children who grew up in stable families have a better start in life. We cited educational attainment, lower criminality, lower mental health disorders and better future employment prospects. In short, better morbidity and mortality expectations.

It is pleasing to see these factors being accepted by government departments as something they can encourage and support.

The spirit of the Foreword in its supportive attitude to the family environment in childhood is especially rewarding. The economic and societal benefits both to the individual and to the state we have long advocated. In short, supported families and stable children become tax contributors not tax recipients.

For that reason there will always be a role for government in creating the right climate both for marriage and in the post separation scenario. It is unfortunate that in the past 15 years Whitehall ministries have succumbed to advice to let marriage whither on the vine and instead focus on making the divorce process ever more efficient.

The present DWP Green Paper is perhaps a departure – the first of a new breed – that recognises that blunders have previously been made in the handling of marriage and divorce.

Everyone is anxious for Whitehall to reclaim its intellectual primacy and rebuild its reputation both of which have been battered by its flirtation with discredited ideologies. The present Green Paper is a big step in the right direction that gives a hint thatWhitehall is entering a new baggage free era.

 Specific questions posed by the DWP Green Paper

Question 1:

Do you agree that maintenance should be more effectively integrated with other types of advice and support provided to families experiencing relationship breakdown to enable them to make arrangements ?

Yes. We are willing to be convinced by the ambitions itemised in this Green Papers. In previous years we have been opposed to any state intervention or integration on the grounds that previous measures have tended to submerge and oppress the individual (especially those of the father).

Therefore, this support comes with the express condition that government’s stated policy of less state interference and more father custody or shared custody becomes a reality.

By ‘integrating’ the various processes and advice we trust that the importance of a child seeing its father will be part of the ‘education package’ aimed at mothers (too often it has been fathers that have been the target of education, censure or reprimand when in fact it is mothers who need to change their perspectives).

We have always lobbied for collaborative parenting in the form of shared parenting and shared residence as the default position, wherever appropriate, as the only way forward. We have always been appalled by the very negative impact that ‘sole custody’ has had on child ‘outcomes’ (ref. achievements, morbidity and mortality etc).

It has always been a disappointment to us that contact / access has been presumed or inferred and not made mandatory in law as other countries have done, e.g. Holland’s Article 377a which gives a NRP the right of contact and visitation arrangements (see http://translate.google.com/#nl|en ).

We are therefore very pleased to read that the Green Paper accepts that parenting should be jointly undertaken and to read the Dec. 2010 confirmation of future shared parenting legislation announcement by Tim Loughton MP (see Hansard).

It is also pleasing to read that the Green Paper accepts a “need to rebalance the system” (see also our responses in Q3 below). We have been reluctant to give our support to previous measures because the phrase support for families referred only to mothers and children and not to fathers in any way.

“Supporting families and relationships, and supporting children’s development” was also the theme of a Nov 1998 consultation paper (“Supporting Families”). [8] It was a misleading title for it dealt almost exclusively with ways of ‘funding fluid families’, i.e. transient serial partners, unmarried mothers and cohabitees (all of which might be described as alternative lifestyles). As was pointed out at the time:

We agree with the Consultation Paper that families have not had the sort of encouragement and support for many years now (and still do not), that other sectors of society have enjoyed – to which could be added marital contracts and family stability in general (Para 4.1). – Nov 1998

This 2011 paper, we are pleased to note, is different from all its predecessors – it speaks of fathers almost as equals in the triangle that is mother, father and child.

We have yet to see whether the vision promises given in this paper are lived up to; we shall have to wait and see how much of the adversarial route is removed and how much consideration is given to fathers who can be just as distressed as mothers. So we shall be looking for what support is extended to fathers compared with that extended to mothers.

We shall have to see if the tyranny of Lord Justice Thorpe in dealing badly with house husbands is brought to an end or allowed to persist. [9] (See also Appendix A).

We agree emphatically with the view (Para 3) that:

  • “ . . . support for families to make their own, family-based arrangements, at the earliest possible stage so they are able to address issues of finance as they address other issues around shared parenting.”

However, we feel this may prove a testing area for any reforms.

In the past, when sole mother custody was effectively the only option courts permitted (95% of custody awards were to mothers), it was felt necessary among fathers groups to argue about the legitimacy of CS and to argue that payment should result in a guarantee of access. This was an attempt to bring a sense of symmetry and democracy to the situation. If the mother upon divorce was, in effect, guaranteed custody then fathers deserved the same sort of consideration and leverage.

It was for that reason alone that in our January 2011 response to the email from David Norgrove (Chairman of the Family Justice Review), we supported the link between child support payment and access. However, with the proposals already outlined elsewhere and several others in the pipeline aimed at giving fathers a far better deal than in the past (ref; shared parenting and pre-nuptial contracts), this linkage is no longer so vital. In that response we stated:

  • “. . . Governments usually claim that it is impractical to link ‘performance related contact’ by the mother with Child Support (CS) payment performance by the father. As a result Child Support (CS) payments have been seen as largely separate from visitation (‘contact’), or visitation rights.
  • No strategy has therefore been seriously considered at official level to counter an obstructive parent and consequently denial of contact brings no penalties to the mother while CS is still demanded of the father.”

From our interpretation of the proposals for change and the public announcements regarding shared parenting the views expressed in the paragraph above to David Norgrove have been overtaken and no longer apply. By government adopting the shared parenting default position the hard decision about which strategy to adopt to enforce compliance among access-hostile mothers evaporates.

We also wrote to David Norgrove that:

  • “The two deterrents to counter contact being denied or withheld is firstly through judicial action by way of fines, withholding benefits or prison against the offending parent and secondly measures to reverse custody.
  • Regrettably, the judiciary has turned it back on these options on the basis that they are impractical or draconian and harmful to children’s well being while forgetting that a small number of exemplar cases and sentences is all that would be needed before the problem would fade.”

However, if shared parenting is to be adopted and each parent treated as equal with no presumption or automatic right to custody the above paragraph immediately becomes redundant. Directing the judiciary to always begin from a presumption of shared parenting for both parents after divorce obviates the immediate need to fine, imprison or reverse custody.

This new landscape of shared parenting might initially represent a culture shock for mothers but it should not prove insurmountable or long lasting.

What will now have to happen is the acceptance by women who divorce that they will not have automatic custody rights in the form they once might have expected. Both parents will only be seen to be fairly and equally dealt with when each parent has the same chance of sole custody.

In creating a level playing field, women will have to have the same likelihood of being awarded custody, or part-custody, as any man, and this should foster better post-divorce cooperation as each will wish to be seen putting the interests of their  child first.

Mediation, as envisaged in the Family Law Act 1996, would never have worked because the two parties were never placed on an equal footing, i.e. both in powerless positions (and there were never enough trained mediators). The default was always that if the mother argued and disagreed enough mediation would be ruled a failure and she would be rewarded with custody. In those circumstances why should she mediate or trade-in her superior status by sharing rights with a husband she was divorcing ?

If – but only if – shared parenting is to be the new default custody position there in no longer any need to seek a linkage between child support (CS) and custody. Shared parenting will erase difficulties over access or visitation rights by guaranteeing both parents the amount of time in days (rather than hours per week) that can be tailored to suit them.

Sometimes it is argued “What if there is disagreement; what happens then ?” The countries operating a shared parenting system have already crossed that bridge. They have developed means to overcome situations where the parties cannot find initial agreement, e.g. Sweden and Belgium.

We see shared parenting as an essential pre-condition to any integration which may include advice and support. Shared parenting, therefore, becomes a pre-condition to any proposed child support (CS) changes.

It also brings a step closer the ambition of many mothers (and all recent governments) to portray themselves in a positive light to their children as worthwhile working contributors to society and not as feckless women forever dependent on state hand-outs.

In a recent survey of over 11,000 mothers across Europe, MEPs found that women with children wanted more flexible working times and easier access to crèches and more flexible school hours.[10]

  • “Many participants stressed the importance of empowerment and that simple cash transfers from the State do not necessarily help.” –  Women’s Rights Committee debates, European Parliament.

There was no European Parliament survey of 11,000 fathers, but from British MEP Marina Yannakoudakis we discover that in one EU country (Sweden), fathers account for 26% of single parents looking after children. Britain needs to replicate that level of paternal involvement.

Where no statutory collection system exists to oppress either parent and no mandatory sole custody exists to benefit one parent, it suddenly becomes possible to de-couple child support from custody and both parties become winners.

With shared parenting in place and agreed before hand, the subsequent negotiations regarding levels of Child Support payments will be free of rancour and gamesmanship. They will reflect the incomes of the two parties, tempered by the time each spends with the child(ren) and thus not be viewed as onerous or unfair on either.

It is gratifying to learn that the Green Paper recognises that “one of the most significant issues for non-resident parents is when contact with their children is denied or withheld.” In not previously accepting this fact of life, attempts to define a model acceptable to all have been defeated. By compromise, i.e. shared parenting, tension and hostility can be replaced by co-operation. It is notable that academic papers looking into this question often find that impotency (real or imagined) by both parties can lead to deep hostility.

Independent studies and the DWP own reports have underlined year after year how guaranteeing contact by the PWC brings more regular payments by the NRP, and with the changes now envisaged the PWC will have a tangible incentive to cooperate in parenting arrangements (re: informal payments etc).

Quintessentially this is the nub of CS and the CSA’s problems. We have always maintained that guaranteeing contact and custody rights will more or less eradicate CS problems and it would appear as if this simple, basic message has been taken on board.

Question 2:

How best can maintenance support be integrated within the network of support services to better support families experiencing relationship breakdown to make family-based arrangements ?

The question of how best maintenance support can be integrated is one we don’t feel qualified to answer. The setting up a support apparatus or system is not an area of our expertise. We would feel more confident in answering the question were alternatives given. We could then highlight zones that in our view might foreseeably be problematic.

Our lack of expertise in delivering generalised services to the public at large and the nebulous (to us) nature of the question leaves us asking what pre-existing support services are envisaged ?

We apologise if we misread the intent of this question but the lack of Plain English throughout the Green Paper is at times a barrier to the proper consideration, understanding and handsomeness of reply. If we have misread the intent then our responses to other Questions may well provide the answers you are seeking.

If we assume support services include some form of mediation service, help for parents in assessing child support (CS), help with ensuring a child’s life chances are not irreparably damaged, then the support services need to show a positive benefit for fathers. This has been entirely absent in previous CS papers – and it is none too clear what a father will gain from this new initiative.

Or is Question 2 asking something else ? Is it asking; “How can the setting of CS payments (i.e., pounds per week) be made part and parcel of advice given to divorcing couples (i.e. how much time with their child each parent should reasonably expect) ?”

If we assume that “make family-based arrangements” is shorthand for custody matters after divorce and that the form of custody is to be the promised shared parenting of Dec 2010 (Tim Loughton MP) we can easily work from that base.

The coalition government is everywhere giving power back to the individual, be it to individual local authorities or voters. The age of the Big Society is set to replace the Big Brother ‘statism’ of the past 50 years.

We see this as an essential move to give back to the citizen his rights and liberties and to treat him / her as an adult; a sentient being capable of making his / her own decisions (and of making binding contracts that will not be overridden by courts if they suspect they might be slightly unfair to one party).

A  new development  which we feel ties in with this ‘new thinking’ is the 2011 paper from the Law Commission which foresees pre-nuptial contracts not only becoming legally enforceable but capable of determination many aspects currently administered by the courts. It would not be unreasonable to suppose that pre-nuptial contracts might eventually contain some kind of limits to excessive CS.

At the beginning of February 2011, Ian Duncan Smith (minister at the DWP) announced a “£30 million programme of relationship support.”  The vision is that “British couples will in future be able to attend counselling sessions in Sure Start Children’s Centres.”

Cohabiting partners with children as well as married couples will be offered the sessions if they are going through “relationship stress,” with advice given on how to stay together. Is this part of the network of support services that Question 2 asks about ?

We suspect that most men and most women who divorce have some regrets and regardless of their superficial answers to post-divorce Questionnaires, mourn the fact they were not able to “make a go of it” [their marriage]. Some voluntary organisations have, for many years, run Marriage Enrichment courses to shore up flagging marriages. They are positive solutions that need government encouragement.

We are in favour of support advice to allow couples to stay together whenever possible. Principally this is because it is better for children to have a stable and continuous family life but also because it relieves the burden on the tax-payer of perennially funding fluid families.

The drawback to the approach of providing support and advice is the same as that highlighted in 1995 with regard the Family Law Act 1996 and the ‘saving of savable marriages’. Firstly, there were not enough counsellors and secondly, there were not enough counsellors who believed that rocky marriages could and should be saved. A fog of confusion hung over the definitions with ‘reconciliation’ representing support and counselling aimed at bringing estranged spouses back together again while conciliation was a fait accompli, defined as:

  • “ …. assisting the parties to deal with the consequences of the established breakdown of their marriage whether resulting in divorce or separation, by reaching agreement or giving comments or reducing the area of conflict upon custody, support, access to and. . .” – Source. Finer Committee.

This second definitions was the basis upon which the Marriage Guidance Council, London Marriage Guidance, and Relate operated. [11] (see Appendix B).

Are the ‘integration’ and the ‘network’ elements mentioned in Question 2, above, intended to be part of Iain Duncan Smith’s £30 million programme of relationship support ?  If not, could the scope of this intended programme be extended to embrace the demands of Question 2 ?

The newly announced switch to pro-active mediation (justice minister Jonathan Djanogly, Feb 2011), before any divorce court hearing is not only welcome but could form part of the integration and the ‘network’ elements already mentioned.

Under these new guidelines couples are to be urged, but not compelled, to use mediation (beginning in April 2011). We see enormous benefits for this change, except in a few percentages of cases where one or both parties are implacable. There should be concern that the present level of mediation which is said to be around 15,000 per annum will be expected to deal with over 120,000 divorces per annum when the system fully implemented. (See previous ref. to Family Law Act 1996).

The parties will have the ability to reach far more sensible and fair decisions about property and child care time than was ever possible in a divorce court. Legal Aid will be provided for these mediation sessions which because they can also deal with property and time with children coincide with the Law Commission work and this Green Paper regarding CS. Making Legal Aid unavailable for property and ancillary relief actions in divorce court is something we have long advocated.

The argument against these reforms is that a form of mediation has existed for many years in the form of a CAFCASS officer’s assessment (formerly CWOs, part of Probation Service).

However, CAFCASS has had a passive if not lame approach. It has not been interventionist in nature and has merely reflected the status quo, i.e. the mother leaves matrimonial home with both children, seeks divorce, CAFCASS officer assesses children to remain in new stable environment; court then hands matrimonial home to wife.

Surveys and studies of all persuasions have found – no matter what the preference of the researchers is known to be – that parents, regardless of self-interest in claiming custody, nonetheless want the best for their children.

Parents very often do not know that these ambitions for their children are actually sabotaged by sole custody decisions and continued squabbling. In the interests of swift decisions and the child’s life chances it would be necessary – in our opinion – to familiarise both parents with what will most likely happen to their child should they not work jointly.

We can provide, as no doubt can other organisations, in bullet point form, pages of the adverse side effects consequent upon sole custody (which have been known about since the 1960s) compared with the favorable consequences of shared custody.

We are confident that the change to settlements by mediation will be beneficial especially when the advantages of working jointly are drawn to their attention and the disadvantages to their children’s future of squabbling are itemised (see Appendices C and D).

In talks with the Lord Chancellors Dept in 2002 a delegation of fathers groups (Coalition for Equal Parenting or CEP), suggested reforms were framed around schemes such as those in Florida (run by Judge John Lendeman). Floridian parents are given information about the damaging impact of their conflict on their children and were invited to work out a parenting plan with the help of a mediator.

Other programmes, such as ACT (Assisting Children through Transition) based in New York, emphasised the learning of new skills ranging from anger management to cookery, while other states developed programmes to help and support parents by teaching about their new roles as collaborative mothers and fathers after separation.

We would press that this reservoir of information regarding psychological and physical well being, needs to be made available and actively used by all those agencies/mediators who will be advising parents at the support services stage. To date this key ingredient has been missing whenever mediation as an option has been considered.

Utilising this tool – among others – will enable more harmonious agreements to be reached more easily (parents want the best for their children). Once this has been achieved the question of CS can be more easily tackled. In talks with the LCD in 2001 all of this was already covered and agreed (see “Parenting Plans” below).

The needs and wants of children have in the past been viewed as unique. The well-rehearsed dogma is that each child is different and has to be treated as such. However, this view is false and has actually veiled key issues and delayed programmes of reform.

In truth, while each child is, indeed, unique (for example a unique DNA blend), the needs and wants of each child remains very much the same, i.e. they are ‘universal’. Each child needs water, food, shelter and a home etc. A child needs both parents and a secure environment in which to thrive.

Thereafter, needs merge into wants and into the superstructure we, as a society, have created. They might be more popularly termed ‘rights’, e.g. the right to an education, the right to vote, the right to gainful employment etc.

If we truly believed each child was ‘unique’ our court practice would reflect this but the mantra is merely a fig leaf to cover an embarrassing disregard for children’s life chances.

The law is essentially more interested in itself than other people’s welfare. For example, it rejected even in the 1960s what amounted to a ‘post-mortem’/ investigation into each divorce petition as being too time consuming even though it knew it would be shortchanging the parties concerned. [12]

Laying ones’ cards on the table in relation to how much time each parent wants – or, indeed, can afford to take, bearing in mind work commitments – must come after both parents realise they have to work together and that no one parent has a veto at any point. It is the veto power that has crippled custody matters since 1989.

As far back as 2001 the Lord Chancellors’ Dept (as it was known then) had copies of “Parenting Plans” gathering dust on its shelves.

Why were they there ? The reason is simple. We have been this close to ‘shared parenting’ before under the previous Labour government but nothing came of it. The format of those Parenting Plans was supported by fathers groups as representing the ideal way forward (see Coalition for Equal Parenting (CEP) meeting with LCD staff, Sally Field and Amanda Finlay 2002).

With the CSA prevented from intervening as before the amount of child support to be paid, will become self-evident. Each parent will know beforehand the other spouse’s income so there is little room for them to be misled.

When one parent who earns gross, say, £220 per week, receives a demand from the other parent for, say, £90 per week in maintenance support, it will (due to NI and income tax) be self-evidently unfair.

It would be equally unfair to demand, say £90 per week from the other parent (who might earn £350 gross), when the PWC actually has an income of £150 p/w (and or benefits), and has a boyfriend who earns £300 pw. Such boyfriend contributions have been overlooked for too long. They should be incorporated into and should affect the amounts to be agreed as child maintenance.

The present Green Paper’s envisaged CS payment structure looks reasonable but is short on detail when both parents go out to work. Similarly, when one parent works full-time and the other part-time yet they share the child’s time equally it is only fair that the CS should reflect the cost of looking after the child by the parent in full time employment.

Question 3:             

What information, advice and support services should be integrated to assist families in making family-based arrangements ?

Mention has already been made in Question 2 concerning the 2002 talks between the LCD (Lord Chancellors’ Dept), and the CEP (Coalition for Equal Parenting), delegation. The schemes and reform programmes outlined in Question 2, e.g.  Judge John Lendeman in Florida or those run in New York, are still valid today. Any proposed integration of services should include these pivotal elements.

A potentially important aspect affecting co-operation and compliance is that of ‘power and control’. We are reminded of this truism in a paper by Stuart Birks’ (Director of the Centre for Public Policy Evaluation at Massey University), when relating problems currently experienced by New Zealand’s child support system.[13]

Implicit in current models of CS is the lack of any visible controls on the use of funds. Money from fathers (CS), and money from the taxpayer (i.e. Gov’t welfare benefits) can be used without censure, regulation or condemnation (if profligate).

Implicit too in current models of CS is the notion that both parents make financial contributions towards the costs of children – which is a fiction. Only one parent pays, i.e. the NRP.

When we examine say the Judge Lendeman approach in Florida or the schemes run in New York, we see a more egalitarian system where one parent (the mother) no longer has an in-built advantage.

There is an assumption on behalf of both state and fathers of full trust in the recipient parents’ use of the designated funds from all sources correctly. However, choices and priorities, e.g. abnormal spending patterns, made by the PWC will impact on the child’s standard of living no matter how high the level of CS is set.. Abnormal spending patterns could and do see the PWC redirecting a large proportion of funds dedicated for the child’s use/benefit.

There are regulatory remedies for fathers who play fast and loose with CS money but not mothers. We would like to see this omission addressed.

There seems to be a false belief that linking child support to a liable parent’s income results in payments for the child, specifically, that then gives the child a commensurate standard of living. Many components of household expenditure cannot be separated out as benefiting some household members but not others. Consequently standards of living are interdependent. This means that child support will have an impact on the household as a whole, not just the relevant child(ren)

From other sources (the popular press) we are given clear indications that young people cannot budget their own personal finances, e.g. credit cards, student loans. It follows that to plan financially for themselves, their child or children and to meet households and utility demands, especially for those with restricted educational attainment, is to ask too much of them.

We suspect that government would ultimately benefit, albeit indirectly initially, from measures to educate parents with care (PWC) in the proper and prudent use of the limited funds available to PWC.

New Zealand, which has often been a proving ground for novel ideas in the social welfare sphere before their adoption by larger countries overseas, feels that their financial welfare package for lone parents, DPB (Domestic Purposes Benefit), is in need of amendment.

In Birks’ opinion, “An unbalanced child support regime can damage relations between parents and between parents and children.” We agree with that sentiment and therefore suggest this Green Paper (which also accepts this criticism), is the first step in addressing the problem.

If money is to be used by PWC (flowing weekly from fathers and welfare benefits), certain criteria should be set and met. There should be an expectation that such money is well-spent and well-directed. To achieve this, PWC need information of an educational nature and a good grounding in the effects of ignoring carefully researched (but simple to absorb) data, e.g. children do better at school when their fathers participate freely and actively.

The information and advice could take the form of warning of the consequences or it could take the form of educational classes and a ‘passing out’ exam – perhaps similar to ante-natal classes, though in deprived urban areas it has to be conceded that even attendance at anti natal-classes by teenage mothers (and thereby jeopardising their unborn child) is very low.

The Appendices attached to this response (see Appendix C and D).are drawn from US and UK sources. They are simple bullet points in plain English that would allow the cognitive disadvantages to be absorbed by parents regardless of their standard of education or IQ

This we see as a fairly reasonable trade-off, or quid pro quo, for state and paternal support and is the element (a quid pro quo) that is totally absent throughout the Green Paper.

The universal problem with child support, which ever way it is configured and irrespective of country where it is found, is the blatant bias in the underlying assumptions. These assumptions are that we can have full confidence and trust in the parent with care and absolutely no trust in the parent with the liability to pay (the father).

Even the benefit system under New Labour, reflects this with no child-related benefit payable to the father’s name whatsoever.

In business, indeed, in the commercial world generally, the party who pays – in this case the father  – is the customer, and in business ‘the customer is king’ meaning that if he wants gold plated bath fittings that is what is provided.

Where is this dynamic apparent in child support matters ?  Fathers are not only the direct paying customer but actually indirectly fund the payments, as taxpayers, made by government departments. The current and previous Green Papers treat and refer to the recipient (mothers) as the ‘client’ and not the payer of the money (the father).

Picking over the fine print as to what method of CS should be adopted (whether to chose gross income, flat rate, or sliding percentage), is, by comparison, a detail. Until such time as this dimension is tackled, namely, recognising and portraying separated fathers in a positive light, child support will represent a running sore for government.

The fall back position of draconian CS enforcement and the range of penalties will actually provide fathers and CS reformers of a different hue (let’s call them contra-reformers), with all the tools and ammunition they need to attack government (as history has shown in one country after another).

Those setting-up the CS system (the policy makers) have framed the issues in a way that is favourable only to recipient parents (mainly mothers). If this framing of the agenda is accepted by father groups then a major concession will have been made.

Policy makers are likely to find that most fathers groups will find some slight advantage over the previous regime and give the Green Paper a conditional endorsement. If this happens the policy makers will have succeed in ‘agenda denial’ and no debate will be permitted as to the legitimacy of a broader approach. It would have been more satisfactory to have found a tangible advantage.

The consistent failure of policy, be is CS or other areas such as child custody, is due largely to the failure of policy makers themselves. Policy makers have controlled the agenda setting, the agenda denial and the framing of key areas of analysis. This is why political success has eluded them. 

Take for instance the recent Rape Anonymity Review; no one in government knew the numbers of false allegations made. No one knew how many prosecutions for perjury or perverting the course of justice there had been. No one knew the age groups of those most likely to be falsely accused and put on trial or the reasons why some police forces did not enforce prosecutions for wasting police time (where costs ranged from £40,000 to £400,000 per case), or for the causing of a wrongful arrest (and the cost of resultant trails).

In other words, policy makers had created an artificial and biased world of data which was of absolutely no help whatsoever. They had emphasised one side of research at the expense of another.

Question 4:

What support around child maintenance is needed for the most vulnerable families to make family-based arrangements?

This is somewhat of an open-ended question. Again, we are a little confounded by the terminology. what are ‘family-based arrangements’?

Whitehall frequently bestows the term ‘vulnerable’ when it means women and low income earners. On other occasions vulnerable groups is a term extended to: the young; ethnic minorities, the disabled; the mentally challenged; those of poor schooling. those with low IQs; the elderly; the infirm, etc, etc.

Assuming ‘vulnerable’ means women and parents with low incomes, then something presently referred to as the Universal Credit, which emerged in Feb 2011, promises to revolutionise our by now overly complex and stuttering Benefit system. It appears to harmonise with the key elements contained in the Green Paper namely:

  1. Low paid workers to keep more of what they earn
  2. One Universal Credit replaces working tax credit, child tax credit, housing benefit, income support, jobseeker’s allowance and income-related allowances
  3. Benefits cut for three months if job offers refused – and for up to three years in the most “extreme” cases

‘Vulnerable’, i.e. women and women on low incomes will henceforth be able to budget accurately knowing what they will qualify for, how much it will be (in pounds per week), and for how long. In that regard it will bring a degree of certainty to proceedings.

‘Vulnerable fathers’, i.e. men and men on low incomes are not so clearly dealt with. This is a pity as 50% of all fathers who receive CS demands have, since 1996 to the present day, been either unemployed, or disabled, or unable to work (it is also a perpetual oversight) (see Appendix E).

When making ‘family-based arrangements’ the professionals advising must be aware of the statistics re: incomes and levels of unemployment. Expectations must not be allowed to billow out of control. Simply because there is a small amount of money available for CS this must not influence the amount of time a father can spend with his child or be a motive for a mother to be ‘difficult’ about this aspect. Custodial mothers with equally limited finances do not face such an implied constraint, so it is unfair to impose it on fathers.

Over the years government and Whitehall have not been averse to relentlessly promoting negative publicity towards fathers and CS. In future the ‘support around child maintenance’ must see a reversal of this characteristic.

To help CS subside as a perceived national problem requires a solution that embraces many aspects:

  • Firstly, the Media can play a big role in changing Public Awareness. this can be coordinated by government and Whitehall.
  • Secondly, proper Child Support guideline design based on accounting principles and capped amounts to remove perverse economic incentives that currently invite legal ‘game playing’ with children as economic pawns. In this regard the promises made in the Green Paper go some way to alleviate this problem.
  • Thirdly, a political awareness by all political parties that enforcement costs more in the long run than it’s worth and is actually counter productive. Threats to confiscate passports and driving licences etc do not encourage participation and cooperation. What has brought the current Arab uprisings is the ‘alienation’ suffered by the population imposed by a disliked / authoritarian regime.
  • Fourthly, the money presently spent on enforcement and bureaucracy would be more wisely spent topping up CS payments to families from fathers on low incomes. Policy planners would profit from looking at the EITC model (Earned Income Tax Credit), in the US.

In our opinion, Henshaw wrongly concludes that enforcement has been weak and “[had] led to an unacceptable situation. … . [where NRP] believe they can ignore the Agency”. If survey evidence suggests that forcing a mother ‘with care’ to use to use the CSA can result in jeopardising child welfare (Para 11), the same can be true for fathers forced to use the CSA. This would suggest to us that not only is the CSA a negative factor but so too is any form of enforcement or punitive action, e.g. removing passports or diving licences.

The focus should not be on punitive sanctions in the name of tax raising measures but on co-operation and incentivising the situation.

In part, this may already have happened if the Universal Credit announced in Feb 2011 consolidates the conflicting individual benefits or tax credits currently in play. EITC (item 4 above) has been shown not to be a disincentive to work for single mothers.  The effect of the EITC is not to drives recipients further into poverty as an unintended consequence of the resulting marginal tax rate effects (which in some cases exceeds the value of the additional benefit).

The proposed Universal Credit (in common with the EITC) will instead pool all applicable tax credits and Benefits for the recipient and apply a progressive marginal tax rate to the aggregated total with an increasing value from 0% at the low income end to more normal income tax rate at some of the upper limits.

Question 5:

Is the balance of burden of the proposed charges fair between the non-resident parent and the parent with care?

No, the burden is not fair.

It is unfair both in the treatment and opportunities the proposed charges offer each sex, and is unfair in what it demands of each sex by way of time, means and material.

It is unfair in expecting mothers to automatically be the child’s carer when she may seek to retain her career and income level. It is unfair that mothers should have to suborn their prospects to a custody regime ill-suited to our modern times where one-wage-households cannot survive.

The 2011 proposals to aggregate CS with other benefits and to allow mothers with care to keep more of the income they earn is welcome but can give rise to a situation recorded as long ago as 1834:

  • “ . . . .I find there are numbers [of women] in most parishes, who have from two to four children, receiving different sums of money with each, according to the ability of the putative fathers; so that the sum the woman receives with the whole of the children, and what the mother can earn, enables them to live as comfortable, or indeed more so, than most families in the neighborhood. It may be truly said that the money she receives is more than sufficient to repay her for the loss her misconduct has occasioned her, and it really becomes a source of emolument, and is looked upon by others as an encouragement to vice.” – Report from His Majesty’s Commissioners for inquiring into the Administration and Operation of the Relief of the Poor (1834), p 169 [emphasis added].

In Question 6 we go in some depth into how ‘poverty’ in families can arise and the effects it can cause. In Appendices E and F, we show how, using tables supplied by the CSA, unemployment and disability can account for half or all non-payments or zero payment of CS.

In Question 6 we also try to demonstrate how statute law passed by parliament has unintended consequences. We leave it for others to spell out the more usually acknowledge ramifications of redundancy, short-time working and a general economic recession which put pressures on the ability to make CS payments.

If child poverty has increased in the last 10 years it can only mean that parental poverty has also increased – and we suspect, given the Feb 2011 economic forecasts, it will continue to increase.

For fathers the CS burden (given the economic forecast), assumes rigidity unconnected with employment prospects. We have yet to be convinced that a sliding scale and a rapid response to income fluctuations is a real possibility.

Fairness is lacking in that there is no hint of a trade-off between care and providing CS. The only role expectation is one of wage earner (the proverbial walking wallet). We had hoped for better in this Green Paper. We would have like to seen a move away from father as permanent and automatic funder of ‘child and former wife.’

‘Allowing parents to make their own arrangements’ (as the National Survey of Child Support Agency Clients’ suggests is a superb idea and does, indeed, give parents flexibility to design their own models but there is no paradigm, no fall back position, no minimum standard to prevent a falling back into bad old ways, i.e. minimal contact of hours/days per month. If the promised shared parenting legislation (ref. Tim Loughton MP, Dec 2010), is forthcoming then this concern largely disappears.

It could be legitimately argued that by allowing parents to make their own arrangements the need for any state imposed framework is negated but if the aspirations of the share parenting legislation are to be realised then CS has to reflect that future scenario.

The study’s suggestion that ‘adjustments should be made to the standard calculation to take account of individual circumstances’, especially where both parents have some overnight care of their child(ren), is so much overdue that it should have been strongly highlighted in the Green Paper.

We very much welcome this proposal but wonder about the “How.” (See Footnote 18 and Appendix A , the Sprawson Report),

For fathers the proposed charges will bring are not equal and fair because they still favour the parent-with-care. Unless the interests of non-resident parent are dealt with in as much detail as PWC then NRPs face the likelihood of any changes being eroded or being ignored after a while.

There appears to be no serious effort made in the Green Paper to convey to the professionals who will be working with vulnerable (and the not-so-vulnerable) families the necessity of including fathers as an equal parent who can and should be allowed to care for his children.

Where is the imperative demanding thatprofessionals (including judges), permit fathers the right to care for their children when they request it ?

In our view it is these ‘professionals’ in the divorce and custody industries who will ‘make or break’ the Green Papers proposals. Arguably, and in the same mould as CWO and CAFCASS officers, if the same people are implementing the new legislation, there might not be much change.

Second families are mentioned elsewhere in our response but no convincing provisions seem to have been made for Second Families and Second Wives in the Green Paper, and precious little in either Henshaw’s 2006 report or the 2001 DWP report (National Survey of Child Support Agency Clients).

Prioritising ‘finished’ empty marriages and the children thereof has dominated CS policy making for decades. We would like to see CS policy makers prioritise ‘new’ second marriages and deal with the problems true nature which is that of a two-sided coin.

If, as Henshaw envisages, his proposed changes will result in child welfare being “improved as maintenance is more likely to flow, and conflict between parents is likely to be reduced”, won’t this by the same token condemn second families to greater poverty ?

There is a great deal in Henshaw’s report that is plain common sense and with which we would entirely agree. However, while plans to lift children out of poverty are most laudable we remain concerned with those families which the new system will inadvertently push down into permanent poverty. These are not the ‘42,000 PWC on benefits’ but single women who are in work and who form a new household with a divorced father. Unlike PWC who will “receive a net increase in income” these women face a decrease in their disposable income.

With a CS compliancy rate of 77% Henshaw’s report – and the Green Paper – could, we feel have dealt in more detail with the differences and the cost to the tax-payer of married and unmarried mothers and for the CS issue to also be divide along those lines (if efficiencies were being looked for).

For as long as transient relationships are tolerated and even encouraged the resulting complicated relationships will ensure child support remains an issue (see 1834 reference above). The financial complications will mirror personal ones and multi-partnering will be multiplied by differing circumstances. The knock-on effects of complicated relationships will emerge in probate and the administering wills when female cohabitees will be induced to compete to benefit for the estate. [14]

‘Re-partnering’ (or remarriage) might once have been just about affordable for a man but repartnering 4 or 5 times becomes a financial impossibility. It could be argued that this level of repartnering is very unlikely but we would point out that this rate of repartnering is common among cohabitees.

Policy makers are essentially targeting the responsible “pillars of society” who are thus penalised and this is sending all the wrong messages to the next generation.

To add to the gloom the Law Commission has, within the last few years, proposed a compensation scheme for cohabiting women (but not for men) corresponding to that for divorcing spouses. Fathers who are divorced spouses currently prefer cohabiting as a means of protecting their remaining wealth and assets from further ‘thefts’.

Were the Law Commission’s proposals and the Green Papers ideas concerning CS ever to see the light of day a paralysis will most probably grip male / female relationships as their economic viability would be called into question.

Should another Law Commission initiative, that of MPAs (pre-nuptial contracts), be legalised then this danger will largely evaporate.

Much legislation since 1969 has had the single intention of facilitating divorce. Urgent consideration should now be given over to that programme being brought to an end ? Should government wish to continue on the same path it should take on the financial responsibility for what is has created (as it did during the 1970s), and fund any new directions in social policy.

In the alternative, the state can off-load its obligations onto the separating spouses, as per the pre-1969 structure. The criteria used prior to the 1969 divorce reforms was that divorce maintenance payable to the wife could be  ‘afforded’ by the husband without her becoming “a burden on the state.

The present divorce and child maintenance system is on that ‘saddles’ one parent (usually the father) with debt and condemns him or his new family to decades of poverty. In some cases he may never recover his original wealth no matter how hard he works.

Reasonable prosperity during the 1990s and early 2000s seemed attainable for all, yet these two decades saw approx 50% of fathers continually in no position to make financial CS contributions. Since 2008 that assured economic world has been reconfigured and it will be interesting to see whether and by how much that 50% of fathers increases (see CSA tables, Appendices E).

A prudent government would plan for unemployed fathers to be given preferential treatment in re-skilling and finding jobs. However, paying lip service to equality and / or being intimidated by political correctness will see no such initiative.

Instead, the low standard of living for over 2 million fathers plus 2 million PWC and plus 2 million children (approx. numbers), will be perpetuated.

Question 6:

Are parents being asked to make a fair contribution to the costs of delivering the statutory child maintenance system ?

The statement that; “Child support enforcement has a poor history” (Para 64) is one we would agree with. Not reforming the child maintenance system, therefore, is not an option. The present child maintenance system does not encourage collaboration nor does it ‘reward’ both parents equally. The new Green Paper recognizes this but our criticism is that this new Green Paper offers only improvements and some benefits to mothers but there are no tangible ‘rewards’ or gains for fathers.

We can only see that from the father’s perspective that he alone is still being asked to pay CS (child support) and is asked again to pay for setting up a new collection scheme.

When referring to “statutory child maintenance” – in the question and the text – we do not see any obvious contribution from the mother’s side that matches the father’s financial contribution.

If a financial contribution from the mother’s side is not possible then fathers need to see far better – radically better – custody arrangements. Sole custody must be erased and shared parenting or shared residence must become the default.

Under the proposals the PWC would appear to have an increase in her likely income because of the envisaged concessions. Where are the concessions for fathers ?

The proposals will probably see the NRP pay the same amount or more by way of ‘informal arrangements’ that are to be recognised (a good thing, in our view), but there is no quid pro quo.

If a NRP is prepared to pay a lump sum (an ‘informal’ amount) when he’s been working overtime or won some money on, say, the horses, does he benefit by a reduced CS tax levy ?

It is unhelpful – and fathers are again being treated unfairly – when government communicates the erroneous perception to the general public that £3 billion is owed by fathers in CS arrears. No serious attempt is made to educate the public that the £3 billion arrears is in fact the total built up since 1993 and carried forward to 2005. In like terms during the Irish “troubles” the outstanding Imperial Debt from 1921 owed by Ireland and payable if partition was challenged, was never mentioned.

No attempt is made to inform the public that 5 years later this arrears total has risen to £3.787 billion in 2010. The public are not informed that a total of £1.146 billion in child support payments was collected last year (2010) and that over the 17 year life time of the CSA a total of more than £19 billion has been paid over to the Treasury (£19.482 billion at 2010 levels).

But is the Total Arrears all that it appears ? In New Zealand the total given as “child support debt” is a massive figure for the size of the country but close to 60% is actually made up of artificially imposed penalties.

Any bank, hotel, retailer or manufacturer that collected £19½ billion worth of goods and services it had invoiced from its customers when 50% of them had no visible signs of support, might consider a bad debts of £3.7 bn more than a reasonable ratio (given the very adverse trading environment within which they were operating – see Appendix F). [15]

Those companies might consider it unseemly and repugnant to seek ‘their pound of flesh’ in full measure by pursuing a debtor beyond the grave, however, the present CSA has no such qualms (Appendix G). It is seeking to recover property and repossess homes from 600 dead fathers – and thus in the process inflict poverty on a second and unconnected level of wives and children.[16]  This has all the salient features of “Irregular Marriages” (circa 1689 to 1860), a practice where chicanery by an interloper left widows and children destitute.

The Consultation Paper speaks frequently of ‘clients’, i.e. parents with care, and a dozen times or more of ‘serving them better’.  Peppered too throughout the document are phrases like ‘better support’ aimed at both ‘families and children’. Government papers have had a tendency, historically, to speak of ‘families’ when they mean solely mother and child units (ref Supporting Families above).

If this is again the case, why is there no comparable and radical support for;

  • a) fathers who have to pay CS and
  • b) single fathers with custody of children who find the state benefits due to them are more difficult to attain, e.g. Jobseekers’ Allowance (JSA) [17] and Child Benefits. [18]

Equal Pay legislation should have meant that levels of CS payments from non-resident mothers to a male PWC should be equal but they have tended to be less. There is no acknowledgment of this. No where are there any measures proposed to better the situation for fathers.

Where is the equality ? Where is the ‘quid pro quo’ ?

Only the Henshaw Report speaks of benefits for fathers but these are limited to indirect incentives re: making payments easier:

  • “The redesigned system creates the right incentives for parents with care to make child support arrangements” – Para 40.
  • “Disregarding most maintenance in benefit calculations would also improve the incentives for parents with care and non-resident parents to co-operate with the system.”

If these CS reforms are to dovetail with other intended legislative changes giving fathers more and better rights to see their children after divorce, then they should have been categorically spelt out. 

It is clear that the two beneficiaries are mothers and government. Generally speaking, lone fathers are treated very differently from single mothers by, for instance, JobCentre staff so a ‘culture change’ and re-education will have to be comprehensive if it is to reach the judiciary, CAFCASS workers and JobCentre staff. [19]

The 1991 legislation (Child Support Act 1991) omitted the father element and immediately ran into difficulties. The 2003 legislation didn’t omit fathers’ altogether and it fared somewhat better.

Any legislation for 2011 or 2012 should include ample and specific provisions for fathers if it is to stand a reasonable chance of a trouble free launch and life thereafter.

The following two graphs are taken from a DWP paper dated 2001 and they highlight an issue that must be addressed for the successful execution of any new CS regime. [20]

The first graph (Figure 4.1) shows the response from PWC when asked whether NRF paid CS before the CSA became involved. The response among mothers shoots up from under 30% to over 70% yet the response from men hardly varies and actually goes in the opposite direction (51% down to 48%).

A similar skewed response was found by Bradshaw et al (University of York, 1997).  Bradshaw resolved the apparent contradiction as the need to ‘play the system’.

Figure_4.1It benefited PWC to under-state payments made by the NRF (in some instance this need coincided with an inclination to put all fathers in a bad light).

The skew in responses between the genders has since been found in other studies. The benefit structure gives the impetus to parents with care to understate their income whenever possible and this can have the perverse effect of maximising income.

By being meticulous and knowing the system the parent-with-care can arrange four theoretical income streams; 1. informal payments by the former spouse, 2. normal state benefits, 3. the new boyfriend / partner, 4. CSA payments.

At present the fourth (CSA) payment is a fiction as the amount paid by a former spouse is paid directly to the Treasury to off-set the costs of single mothers to the state. The proposed new regime (2011) will see this fourth revenue stream made a reality.

Fairness

While the state is being more generous to mothers, i.e. the parent-with-care, there is no commensurate generosity towards fathers in the form of reduced CSA payments or tax deductible expenses, e.g. something comparable to a married man’s tax allowance reflecting child support obligations.

Henshaw and the DWP speak of ‘lifting children and PWC out of poverty’ but how many NRP (fathers) will be lifted out of poverty, how many ‘pushed’ into poverty (or simply left to remain in poverty ?)

How many NRP with second wives and children will be pushed (very firmly) into poverty by such policies ? When legislation was debated and then enacted for homosexual unions specific tax breaks and allowances were replicated as if they were a normal procreating couple with wealth and assets to pass on to their children. Don’t NRF have children who need to inherit ?

The state has a ‘conscience’ about women and poverty – but no scruples whatsoever when it comes to men and poverty. We see this again demonstrated in the wayGulf War Veterans are (mis) treated. Government appears not unduly concerned if they are homeless after serving in Iraq and Afghanistan and whether they sleep rough on our streets at night.

The perverse nature of the Benefit structure and the imperative for PWC (parents with care) to maximise their own income is shown in the second of the graphs (see Figure 9.11). These imperatives clash with the longer term vision of the Divorce Reform Act 1969 of making re-marriages more easily attainable.

Figure 9.11 (below) depicts what happens when PWCs were asked if their payments should decrease if, at a later stage, the NRP had a child by another women

Almost 70% of mothers (PWC) said ‘No’ and only about 18% agreed that CS payments should fall to reflect the new responsibilities and liabilities to the new family.

Figure_9.11Refusing to accept a lower CS payment might seem reasonable but this survey was taken at a time when a new partner’s income was not taken into account by the CSA (and most women had a ‘new friend’ within 6 months).

Any new CS system will have to bear this dynamic in mind (the cause of much friction in the past), and seek not to reward or encourage under or over-reporting of various aspects.

Which brings us to the underlying difficulties government face insofar that the state has not thought through, or logically reconciled, its own history of contradictory polices. It has been inconsistent and uncoordinated. In one breath the child’s best interests (CBI) are paramount and in the next breath the child’s interests are allowed to be jeopardised by encouraging divorce-on-demand.

The state is in a contradictory position. On the one hand all governments have long recognised that children are best brought up in two-parent households yet on the other hand governments since 1945 have facilitated marriage break-up. [21] In the matter of IVF – now available to all couples irrespective of sexual orientations – it is the child’s best interests, the child’s rights to both parents, which are abandoned.

State sponsored incongruities abound in every direction; the state has a poverty line and an anti-Graphic_1poverty programme for children yet ‘child poverty’ has increased in the last 10 years.

These policies impinge on Child Support payments and having failed to ‘lift children out of poverty’, CS is the chosen vehicle to be the tow truck to rescue this policy.

It is expected that “between 80,000 and 90,000 additional children” will be lifted out of poverty by the proposed measures the Green Paper never asks, ‘Why are they there in the first place ?’

One in five UK children ‘is living in poverty’ says UNICEF report (19/06/2001). “A report published yesterday placed Britain 20th out of 23 countries in a league table of relative poverty. Unicef said one British child in five lived in poverty – a worse figure than in all but one of the other 14 EU countries.” http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2000/06/14/npov14.xml/ . See also “Child poverty Up” The Independent, 24th April 2007. http://news.independent.co.uk/uk/politics/article2481036.ece

When legislation is passed by parliament which demands that courts insist that the upkeep of two households (caused by the divorce) should be funded not by the legislators but the victim (the NRF), only unhappiness can ensue.

It was never going to be viable or practical for one income to pay for the upkeep of two households and the task become next to impossible for those who are middle to low incomes earners – particularly when the Equal Pay Act abolished by the concept of the family wage. Nor was it ever going to be practical for two wage earners but in the low income category to pay for two residences upon separation.

Page 21 of the Green Paper indicates that the average amount of CS paid is £1,800 per annum (approx. £35 per week). [22] It also reveals that ‘an average case’ can be expected to last nine years. Over the duration, i.e. of 9 years, more than £16,000 would be paid by the NRF.

A young man, paid the Minimum Wage, earns approx £11,500 pa. A person on slightly higher wages might earn in the region of £16,000. The effect, therefore, on low paid workers is that in a 10 year period they work one year for no pay. If anything this understates the problem, in terms of after-tax income because CS is not tax deductible for the paying parent.

The adjacent graph (see “Percentage increase” above), is based on the results of the 2010 Annual Survey of Hours and Earnings (ASHE).[23]  It shows thatmedian weekly pay for full-time employees in the UK grew by 2.1% in the year to April 2010, to reach £499 (or £25,948 pa). Costs, i.e. inflation, are currently at 4%.

Median earnings of full-time male employees were £538 per week in April 2010 (or £27,976 pa). For women the median was £439 (or £22,828 pa). Income tax, National Insurance and other payroll ‘stoppages’ effectively reduce Gross income by one third. An income of £22,000 or £27,000 soon drops perilously close to the £16,000 mentioned above.

But critically the graph shows that over the past 2 years increases in earnings among male earners have actually fallen and that overall since 1998 increases are getting smaller and smaller. Any new CS system will have to take these rises and falls into account and the system proposed looks as if it might meet this requirement.

The Green Paper states that:

  • “Given the long-term financial benefits of child maintenance we believe it is fair and in line with the principles of personal responsibility to ask parents to reallocate a small proportion of their spending so that they can afford an application charge.”

The reciprocal of that must be that given the long-term financial benefits to government of child maintenance payments made by fathers we believe it would be in line with the principles of fair play to make fiscal and financial concessions to fathers for easing the burden – an incentive to help government reach its goal.

The possible long-term “de-skilling” of the labour force is one of the interpretations that the Annual Survey of Hours and Earnings graph allows us to make. Others include the depressing effect of the entrance of the ‘college-educated’ young into workforce into an already recession-hit economy and the entrance of more women into workforce. The implications for future CS payments are obvious.

Easing the path

If the state wants divorce to be “easy”, inexpensive and available to all, it must accept the

consequential costs of that ambition and similarly recognise its role in the process must also include the funding of child maintenance payments.

The promised ‘liberation’ of easier divorce was purchased at the price of a fettered economic existence thereafter for both parties driving up poverty (see Conclusion, engine of wealth generation).

When the state fails to face up to the consequences of its own actions i.e. its obligation to pay for child maintenance because low income NRF cannot afford to pay CS, it stultifies other stated ambitions. For example, the aim of the Divorce Reform Act 1969, was that re-marriage should be made possible and more easily attainable. The fact that remarriage numbers have never reached their intended level would indicate a failure of policy

When relationships break down it is only natural that both partners will enter new ones to replace the old. The Divorce Reform Act 1969 recognised this. The strikingly and significant difference with all CSA legislation to date is the non-recognition of this fact.

Regrettably, both the Divorce Reform Act 1969 and the Child Support Act 1991 then conspire to deprive the NRP of any money, assets and wealth that might make remarriage a reality.

Between them they create the Second Wife Syndrome and the prospect of “debtor’s prisons” – made infamous by Dickens – is resuscitated when amendments to the Child Support Act 1991 made debts, which would otherwise be statute barred, legally enforceable in future. [24] The statute barred status of CS debts needs to be re-instated.

No CS regime to date has taken full consideration of a man’s obligations to his new wife and child.

Why should the first wife ‘beggar’ her replacement or the first born forever lower the standard of living (SOL) of the child in the second family ?  The first wife is perfectly capable of finding a new partner and raising her SOL.

There is a need to cut fathers some slack on behalf of second wives and their children (or cohabitee if cohabitees are now soon to be treated as if they were spouses). There should be some form of quid pro quo but again, there is none.

Any leeway or tolerance is centred on the mother-with-care. As discussed elsewhere the benefit regime encourages PWC to understate income and to declare themselves as ‘living alone’ when this is not the case. Living apart together (LAT) has become a phenomenon in recent years.

Not only does it absorb much needed housing but is a subterfuge to maximise Benefit payments which would otherwise decline if the authorities knew the woman was cohabiting. It is in the state’s interests to stem such haemorrhaging.

It would seen that if the state reserves the right to reduce payments when a new man enters the woman’s household it is only fair that CS payments paid by the NRP should fall when the former spouse finds a new partner and moves him in with her and the children.

We note too that the American TANF (Temporary Assistance for Needy Families, 1996), adopted as a model by the UK limits welfare payments to 5 years (see also Personal Responsibility and Work Opportunity Act, US). If the state reserves the right to limit payments to 5 years why should a NRP be forced to pay for 16 – 18 years ?

This Question asked about fairness and contribution. If the state believes it is unfair that taxpayers should be asked to pay when other sources of funds are available, the same question should be allowed to be asked by fathers.  

When a new man enters the woman’s household it is only fair that CS payments paid by the NRP should fall. The new man should not be able to enjoy the ‘comforts of home’ sound in the knowledge they are financed by someone who is not allowed to be there.

One hopes that this issue will be comprehensively dealt with in the forthcoming Law Commission’s paper on pre-nuptial agreements but past experience would tend to discount this expectation.

Frank Field MP, in a BBC ‘Panorama’ programme comes to the conclusion about modern fathers and child support, that; [25]

  • “The benefits system and high unemployment rates among young men means that they can walk away from their partner and children.“

He is wrong to conclude that young men ‘walk away’ when in all probability it is young women / mothers who push fathers away because of the way in which benefits are structured. Was it ever thus as a Commission of 1834 into the operation of the Poor Laws noted:

  • “The allowance made to the mother for the support of her child and secured to her by the parish in case of the putative father failing to pay the amount awarded is an encouragement to the offence it places such women in a better situation than many married women whatever may be the number of children.” – Report from His Majesty’s Commissioners for inquiring into the Administration and Operation of the Relief of the Poor (1834), p 170.

The issue of welfare dependency as the preferred household ‘wage’ is one we have raised many times in the past 10 to 20 years citing AFDC (Aid to Families with Dependant Families), and the TANF (Temporary Assistance for Needy Families, 1996). But as can be seen from the 1834 evidence, subsidies affecting personal behaviour patterns are not new phenomena.

We care less today about bastardy and the stigma of being an unmarried mother than was the case in the 19th century society but regardless of time and source of funding, the consequential marginalisation of fathers remains undimmed.

The state, in trying to help the needy, marginalises the father and inadvertently dispossessed many low income fathers (disproportionately Negro fathers in the US case) of their place in the family.

Frank Field MP also states, but incorrectly in our view, that:

  • “We’re the first generation in recorded history where society has not made the man who begets a child responsible for that child. We took the easy way out.”

Looking at marriage rates in the 18th and 19th century and how numbers have risen and fallen with good and bad harvest, Frank Field is correct in terms of external factors. However, he is not correct to assert that we are the first generation in recorded history where society has not made the man who fathers a child to be responsible for that child.

We would draw his attention to the recommendation of the 1834 Commission:

  • “We recommend therefore that the second section of the 18 ElIZ CAP 3 and all other Acts which punish or charge the putative father of a bastard shall as to all bastards born after the passing of the intended Act be repealed.” [26]

This perception of big the first generation might be true for the middle class, the cognoscenti, but literature abounds with examples of statute law and cultural code violations being impotent in the face of reality among the poor, e.g. Far from the Madding Crowd’, ‘Tess of the d’Urbervilles.’ Indeed, there would be no need for the Poor Laws, the workhouse, orphanages, or for foundling hospitals etc were Frank Field correct.

We join with Adrienne Burgess, of the Fatherhood Institute, when she warns that society should be careful when applying the “feckless” label to every absent dad:

  • “The vast majority of those men want to see their children.. . . Very often they’re unconfident, they feel they have no value. There are all kinds of barriers that they may not be strong enough or confident enough to overcome, but they’re not feckless in that sense of the word.”

Conclusion

There is a horrible mismatch between high-minded child welfare principles with stated principle of fairness on the one hand and the squalid reality on the other. What is ‘good for a child’ is often not what he or his parents want for him (or her) but what some 3rd party adult dictates (this is sometimes referred to as the price of welfarism). As a consequence, anomalies and double standards proliferate at every level.

The mismatch has now been recognised by government as financially no longer sustainable. We have a very expensive system that produces only bargain basement products.

Into this contradictory hotchpotch is parachuted a ray of hope in the form of this Green Paper and the much overlooked Henshaw Report.

Liberal aspirations are everywhere punctured by punitive retribution legitimised by the need to hit targets, ‘send signals’ and ‘do the right thing’. In this atmosphere where ‘surgery’ is deemed essential, the operation can be acclaimed a ‘success’ but the patient dies. This personifies our history of child support, of championing child care, and of callously claiming to make a child’s best interests (CBI) paramount. As a nation we need this Green Paper like dying man needs oxygen.

“Targeting” state benefits to sub-groups has been accepted by politicians of all persuasions as cost effective and an efficient means of delivery. This Green Paper accepts the need for targeting but this faith may be misplaced. Patricia Morgan has shown how target based programmes suffer ‘creep’ (into near universality), or fail to reach significant parts of the intended audience and can be more expensive to operate.

More than twenty years earlier George Gilder (1973) and Senator Moynihan identified the disadvantages in the ‘Aid to Families with Dependant Families’ (AFDC) programme. In both the US and the UK family poverty had been subject to detailed and sophisticated analysis. Targeted state benefits should have reduced poverty but instead drove out the male partner and thus lowering the overall family incomes and sucking in more state subsidies. What should have boosted family incomes actually decreased it and what should have strengthened families culminated in the double tragedy of social disintegration and accentuated class divisions.

Is child support, i.e. targeting children of separated parents, the way that is most efficient ? Is money spent targeting fathers in arrears productive ? Would a universal state funded benefit for the maintenance of all children be more advantageous ?

We note that; “In 2009/10 the cost for every £1 collected was 44p.” and it appears to cost around £460 million to run the existing scheme made up of 1.2 million cases.

The worsening UNICEF child poverty reports for England & Wales, could, we feel, reflect the increasing tendency by the state to target more benefits and, as Morgan highlights, results in actually failing to reach significant numbers.

Government has no choice but to be deeply involved in the lives of families and of poor single parents and their children if only because of the cost to the Treasury they represent. In this context, the absence of any government effort to support marriage does not represent neutrality and the lack of its encouragement as a valued first choice is an abrogation of responsibility. [27]

CS payments may sometimes be problematical among formerly married parents but we feel regularity of payment among unmarried parents is likely to be far worse. A statistical breakdown comparing payments made by formerly married fathers versus unmarried fathers would provide much insight. The only published number data available aggregates the two categories.

In the absence of such data it is perhaps noteworthy that in London single mothers make up 22% of all families (the largest proportion for any UK region). A breakdown of London data shows single mothers in Lambeth represent  48% of all families, in Hackney 43%, in Southwark 45%, and City of London 42%.

It has always been our contention that it is wholly unfair to inflict by legislation on the majority of fathers (who routinely pay CS), a set of rules and sanctions for a truculent minority (and who might be confined to regional or city sub-groups, e.g. Lambeth, Southwark).

1. Income levels

No new initiative will work without income levels being sufficient to meet what is required of them. Most households these days need to have two, not one, wage earner – just to survive. Fifty percent of the work force is now female. The family wage as a concept was destroyed by Equal Pay Act. Yet this fundamental change seems not to have penetrated judicial thinking as witnessed by the way they handle reality in divorce and custody cases.

Households can no longer survive on just one income. Yet this is overlooked by CMEC and government in their plans to double tax the income of the divorced father. Indeed, the whole area of income levels (and the lack thereof in many instances) is almost glossed over in the Green Paper.

The married man is the engine of wealth generation. Married men create more wealth than single men – and single men create only the same amount of wealth as single women. The reason for this is obvious – he has an investment in his children and advancing their interests.

Yet what has legislation sought to achieve since 1969 ? The break up of the family, place obstacles between fathers and their children and penalised not incentivize the care of children. No wonder child poverty is now so acute.

For the divorce father there is no commensurate off-set by way of Married Couple’s Allowance (this is worth an additional £2,800 pa), or a share in Family Credits. Instead, he is expected to pay for his family obligations after his divorce at a time when he suddenly finds himself also paying for a second home.

The gravity of the injustice is only compounded when it is realised that 80% of fathers are divorced against their will. In itself that is reason enough to consider the abolition of the CSA, the questioning of the concept of Child Support, and review of returning to pre-CSA provisions.

2. Custody is key

Almost 10 years ago another Green Paper ‘Making Contact Work’ floated the idea of reversing custody in difficult cases which would have been a move we would have supported. Nothing came of this idea, of course, but it confirmed in print what was patently wrong with the custody regime.

The years 2000 – 2002 represent the point in time when it was recognised in official circles that de facto the  divorce and custody structure treated children as ‘cash cows’.

The pretence that children were real people needing both real parents fell away revealing them to be mere pawns in a bigger game. There was clear evidence that a sharing of custody and parental rights was a fiction in the Oct 2002 meeting between the ‘Coalition for Equal Parenting’ (CEP) and Amanda Finlay and Sally Field of LCD.

The transcript of LCD meeting shows Sally Field referring to the Children Act 1989 and suggesting that:

  • “ . . . .it might be useful at this juncture to look at the history of the Act. The Bill had started in the Lords and then progressed to the Commons. . . . in Nov 1988. Notes on Clauses produced at the time the Bill was progressing through the Lords recorded that ‘joint custody ’ had been the norm prior to the Bill, with an order being made in every case. The Bill sought to change this so that an order should only be made if it were better than no order being made – i.e. a less interventionist approach.

The inability (or preference) in official circles to take on board the implications of custody as an deal-breaker, as an issue of principle or simply as a totem, displays Whitehall’s rigidity. The view of the CEP (Coalition for Equal Parenting) was that shared parenting was not only the only way forward out of the impasse but would provided a route to lower legal fees for both clients and government. Further, if this route was not adopted the CEP warned that the Treasury would face ever larger bills for the social consequences which would reach a point where would prove unsustainable.

All 3 of these predictions have now come about (shared parenting; lower government legal fees; Treasury worries).

The Green Paper has indirectly lifted the pressure off custody as an issue by allowing separated spouses to negotiate freely and individually. This is the essential pre-condition that we suspect will now allow resolutions in other related fields. This can be seen as an expression of the new ‘Localism’ agenda announced by government

The Green Paper continues to disappoint in its propensity to resolve matters by punitive and malicious action against fathers while not uttering a word of sanction aimed at mothers.

Jailing a father for ‘non-compliance’ bends no one out of shape but jailing a mother for non-compliance appears to hit a raw nerve. Is one human being more valuable than another ?

We suggest that such punitive action aimed at fathers is highly counter-productive. Not only does it prove sexual discrimination but he will lose his job – the source of CS payments – jeopardises his standard of living, compromises his liberty and his right to contact his children

If it is the “accepted duty of government is to provide a framework for people to discharge their responsibilities” why has custody not been addressed ?  [28]  Particularly when “Failure to deliver financial responsibility can have widespread negative consequences.” [29]

Why have only the peripherals (in the form of CSA and ancillary relief) been addressed with the latter merely criticised as being ‘vindictive’ ?

The Green Paper skirts around the veto powers of custodial mothers and gate-keeping antics that prevent proper contact visits. Nothing is said of the waste this produces in time and money spent travelling to the appointment

The map shown below is the custody ‘geo divide’ that emerged from a 1987 study by the Law Commission. In the north joint custody levels (comparable with today’s shared parenting) were very low, while in the midlands and south joint custody awards were significantly higher.

Geo_divideIn 2012 should we expect to see a similar ‘geo divide’ in payment patterns and custody awards ? Will fathers in the north pay lesser amounts and less frequently ?

The ‘geo divide’ has another dimension. Rail fares on, for example, the East Coast Mainline can cost £200 to £300 for a return ticket (say, London to Newcastle), and even commuters in the South Legend_1East regularly paying £3,000 for a season ticket. They often take out a loan to pay for such season tickets or their employer builds it in to the remuneration package. How can divorced fathers be reasonably expected to see their children when disposable income is at such a premium and no one to offer a ‘package’ ?

Because of the sheer distances involved, in the US and Australia, the costs posed by mothers who move away after divorce has to some extent been addressed. Court restrictions on how far away they can move are not uncommon. To offset the greater distances the fuel costs in the USA and Australia are significantly lower than in the UK, e.g. £4 per gallon of petrol and not £8.

3. Paternity

DNA testing is another veto right given to mothers and not to fathers – gate-keeping and custody being the other major veto rights. In our opening g remarks we pointed to the imbalance between mothers and fathers and between those that receive payment and those that are obliged to pay.

It was, in our view, a retrogressive step to align English law with that of Scotland so that a father in a household is automatically deemed to be the biological father of any child produced and therefore financially liable as well as criminally liable for CS default.

Our opening g remarks also quantified a problem re: false paternity which no one in officialdom seems to address seriously. We tentatively put the number of false paternity claims at tens of hundreds but until research is undertaken it could be tens of thousands or hundreds of thousands

The possibility of hundreds of thousands and the American Wise case, has spurred legal minds and ethicists to refocus and re-define ‘fatherhood’.

The prevailing view now appears to be that a father is the man who reads children their bedtime stories, and not the man who necessarily shares his DNA.

The abrogation of the human right to determine who one’s own children are is yet another layer of injustice thrust upon fathers who have already had to contend with divorce bias, custody discrimination, confiscation of assets, and mandatory CS paying, all situations that may not have been of his choosing. The Green Paper could be optimistically viewed as representing in its subtext less state intrusion into private lives but it is too early to say. On the other hand, there appears to be nothing in the Green Paper to prevent further state intrusion or the continued discrimination against fathers.

4. Pre-Nuptial Agreements

Once frowned upon as contrary to public policy, the reluctant acceptance that Pre-Nuptial and Post Nuptial contracts can bring benefits demonstrates how far policy makers have grudgingly moved. It also tells us we are in a mess. The changes would not be needed if the primary components of marriage and law had not been adulterated by persistent interference.

In our opinion the publication by the Law Commission of “The future for pre-nuptial agreements”, is a significant step forwards and in one blow could solve several difficulties. [30]

A 1998 consultation paper, “Supporting Families” devoted a chapter to “Strengthening Marriage” and also embraced Pre-Nuptial Contracts (Para. 4.20) together with marriage preparation.

Pre-nuptial agreements as an idea were of very limited use in 1998. They were symbolic in value as that they became null and void once children were born to the family.

However, if the Law Commission’s most recent proposals (Jan 2011) regarding pre-nuptial agreements bear a close resemblance to newspaper reports, then a new chapter will be opened.

Firstly, it will overcome the blatant sexism and dire consequences contained in their May 2006 report into cohabitation compensation (“Cohabitation: the Financial Consequences of Relationship Breakdown”, Law Commission Consultation Paper No 179, http://www.lawcom.gov.uk/docs/cp179.pdf ). [31]

Secondly, some of the problems highlighted in our comments regarding DNA / paternity listed above will be negated. Pre-Nuptial Contracts could shield fathers from unscrupulous gold diggers, and will allow them to counter claim and prevent injustices.

To illustrate the perennial nature of this danger we cite a Parliamentary Commission of 1834:

  •  “(The Commissioners ). . .. thought that poor men were at the mercy of blackmail and perjury by unscrupulous women…. The bastardy clauses of the Act of 1834 were in line with the opinions of the Poor Law Commissioners. The laws which had enabled a mother to charge a putative father before the magistrates were repealed”.

The more thing change the more they stay the same. The following is quote from a Commissioner from the same 1834 report:

  • “I find there are in most parishes, [women] who have from two to four children, receiving different sums of money with each, according to the ability of the putative fathers; so that the sum the woman receives with the whole of the children, and what the mother can earn, enables them to live as comfortable, or indeed more so, than most families in the neighborhood.
  • It may be truly said that the money she receives is more than sufficient to repay her for the loss her misconduct has occasioned her, and it really becomes a source of emolument, and is looked upon by others as an encouragement to vice.” – Report from His Majesty’s Commissioners for inquiring into the Administration and Operation of the Relief of the Poor (1834), p 351

If the state is today minded to create all manner of relationships between heterosexual and homosexual couples, it is only fitting that the state should also provide the individual with the means to protect himself against unwarranted attacks, profiteering and intrusions.

5. Second wives’ club

One category of women have been made into victims since the Divorce Reform Act 1969 and their position worsened after the Child Support Act 1991.

CS (child support)  legislation has made no allowance for these women and the present Green paper makes the same omission. All that can be said is that individual engaged in negotiations regarding payments CS will in future e able to take a broader view of their liabilities and abate them if the need later arises, i.e. they find a new female partner.

What is perennially not addresses is the income of the interloper ‘second would-be husband’ or subsequent partner. For this eventuality no deduction for his sizeable contribution to the divorced woman’s income is envisaged. This is wrong and unfair.

The only other recourse to a fairer system for citizens is the legalisation of pre-nuptials and post-nuptials contracts. Should it ever come to pass, the barbs and razor wire that now characterises the CS system will be blunted. Poverty will be aggregated not localised or concentrated on second wives. Assumptions of a guaranteed SOL (standard of living) presently held by first wives will come into question and will need to be assessed before they decide to divorce their husband.

  • 6. The Universal Credit

Welfare reform as a modern political issue in the US began in the Clinton era. There was a ground swell of opinion that the national (or federally funded) system was becoming too complex to control and in some instances counter productive.

In the beginning there was AFDC (Aid to Families with Dependant Children) created in 1935. But by 1996 recipients of AFDC were “1,700% more frequent among illegitimate children of never-married mothers than among legitimate children raised by intact married couples.” [32]

TANF (Temporary Assistance for Needy Families) replaced AFDC but failed to drive down poverty. Instead, it drove out the male partner thus lowering family incomes still further and promoted the double tragedy of social disintegration and accentuated class divisions (today, there are fewer Black Americans who are married than in 1900).

Supplementing the federally funded benefits are state programmes. There are many variants and the degree of generosity varies but each state essentially has some sort of mix, i.e. a ‘retraining’ programmes; “workfare”(i.e. mandatory work for government money such as street cleaning; private sector work; re-entry programme; certified not-for-profit sector hours; etc.

The Minnesota Family Investment Program (MFIP) is one typical example embracing all of the above. [33]Quote:

  • “ . . . MFIP helps families move to work and focuses on helping families. It includes both cash and food assistance. When most families first apply for cash assistance, they will participate in the Diversionary Work Program, or DWP. This is a four month program that helps parents go immediately to work rather than receive welfare.”

If we compare the ideals announced by Iain Duncan Smith, when introducing his Universal Credit (Feb 2011), there appears to be much that is borrowed.

It is too early to say with certainty but the Universal Credit does have the potential of helping resolve protracted CS payment difficulties.

9. Abolish Child Support altogether

Radical and painful views have traditionally tended to come from one direction and impacted on one group more than any other. Fathers, and men generally, are usually expected to finance whatever exotic legislation is planned.

To return the compliment, let serious consideration be given to abolishing child support altogether – if not now, then in 5 years time.  CS in the UK has a long and chequered history. Ten years ago we were counting the cost in the number of fathers committing suicide. As we have seen from the above reference to the 1834 Commission, one generation after another have thought that they alone have found the answer to CS.

However, only this generation has sought to legally de-couple a father from his biological child. Legislation now in force makes it clear that a father has no automatic, natural or legal obligations to his child since the father’s role as guardian has been abolished. [34]

If the time honoured right of a father to look after his legitimate children has been abolished one has to conclude that the mother and the state are the only parties with guardianship rights remaining. As a consequence the logic is painful. Since the state has taken unto itself protection of the child and all the attendant responsibilities including guardianship, fathers are superfluous. As such fathers have no obligation to support or to care for a child which now ‘belongs’ to the state. The upkeep of any child therefore falls squarely on the shoulders of the guardians remaining and it is left to the state to pay.

The mistake the state makes is not in tying to address the issue but in tying to address all of the cases in the issue.

Whitehall policy shapers appear to have been seized of this epiphany at long last. ‘The poor’ it is said will always be with us and so too are the failures to regularise child maintenance payments. As if to underscore our position Henshaw concedes that, “Only 13% of current cases have the potential to recoup money for the state.” [35]

We must hope there is a realisation in official circles that did not exist before, namely, a questioning of the cost and cost-effectiveness of the CSA. Getting officialdom to arrive at this juncture has been an uphill battle. It is therefore worth highlighting the bulk of the criticisms made by fathers groups against the CSA over a number of years in these bullet points: 

  • The CSA cost £1 billion to set up in 1993. The court system cost Gov’t nothing.
  • Government is owed over £3 billion it has paid out in ‘maintenance’ to single mothers and is very unlikely to be able to off-set it by collecting taxes from NRFs (non resident fathers).
  • The CSA recovered only £120 million in Income Support expenditure in 2004/05, against costs of £425 million, albeit around £80 million was saved elsewhere.
  • Annually, the system runs at a net loss to the taxpayer of around £200 million.
  • The efficiency of the CS regime has consistently been poor
  • It represents poor value-for-money for the taxpayer.

Lending support to the idea of abolishing CS altogether is this extract taken from Henshaw’s 2006 report into CS payment:

  • “Child support is only likely to be a significant factor where the non-resident parent has a high income. However, in such cases, disregards are unlikely to outweigh the strong financial incentive for the parent with care to remain in the relationship.

Separation typically means a large drop in income for the parent with care.

There is considerable evidence demonstrating the often substantial drop in the standard of living likely to be experienced by carers and children. [36]

  • Evidence suggests women’s net income declines by as much as 18% following separation. [37]
  • Some 48% of children in lone-parent households are in poverty (after housing costs) compared to 20% in couple households.” [38]

Since the CSA data show the majority of fathers to be in or on the borderline of poverty (i.e. net incomes and/or disposable incomes) the “non-resident parent [who] has a high income” is a rarity. (See also Social Security Dept Tables G2.07 and G2.08. Appendix E).

Coupled with the destructive influence CS has on wealth creation and wealth accumulation the case against CS payments is building.

E N D

Appendix A

 

The bias in judicial awards of custody vis-à-vis house husband who normally care for the children are epitomised by these two cases 8 years apart but ruled upon by the same Appeal Court judge ( 2001, 2001 & 210)

 2002

Custody ruling deals a blow to house husbands

 By Matt Born, Daily Telegraph, April 19th 2002

 http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2002/04/19/ncust19.xml&sSheet=/news/2002/04/19/ixnewstop.html

THE principle that children should be raised by their mothers won the overt backing of the Court of Appeal yesterday after it rejected a house husband’s attempt to win custody of his two children.

The father, who had raised the children in their £1 million home while his wife enjoyed a successful career on a salary of £300,000, argued that he was the victim of sex discrimination.

But the court refused him leave to appeal against a High Court decision which granted custody to his estranged wife. Lord Justice Thorpe, sitting with Lord Justice Buxton, said that despite the “unusual” role reversals in this case, they could not ignore the “realities” of the “very different” traditional functions of men and women.

The father, who cannot be named for legal reasons, had wanted the children to live with him in London while his wife, the family breadwinner, continued to maintain them.

He also opposed her plans to give up her career and move hundreds of miles away with the children, who are both aged under six. Richard Tott, the father’s barrister, asked the court to imagine the situation in reverse.

He said that if a male breadwinner proposed giving up his job, taking his children out of private education, moving far from London, and replacing the mother as the primary carer, “his application would be looked at with extreme scepticism”.

But in his ruling, Lord Justice Thorpe said that this submission seemed “to ignore the realities involving the different roles and functions of men and women”.

The judges heard that after the couple split up last year in “fraught circumstances” each had applied for custody.

The husband moved out of the family home, while the mother cared for the children briefly. However, they soon reached an agreement to share time with the children. The husband moved to a nearby rented house, paid for by the mother.

But the mother now wanted to give up work in order to spend more time with her children.

His belief that her desire was genuine was the decisive factor in rejecting the father’s claim, Lord Justice Thorpe said. He said it was “not uncommon” nowadays for those who have “sacrificed the opportunity to provide full-time care for their children in favour of a highly competitive profession” to think again about their priorities.

The judge added: “[They] question the purpose of all that striving and whether they should re-evaluate their lives before the children have grown too old to benefit.

2001

Only a year earlier in 2001, a father won a landmark legal victory regarding shared parenting and the overt sexual discrimination against fathers contained within the welfare benefits system (see Hockenjos v Secretary of State for Social Security).  [1]  It was a short lived righting of discrimination with the government immediately abolishing the relevant piece of legislation.

 2010

Rachmacher v Granatino  

(see http://www.familylawweek.co.uk/site.aspx?i=ed36874 )

This case has elements of both pre-nuptial contract and shared care agreements being overturned (Lord Justice Thorpe ruled).

 Abridged

Rachmacher, a German heiress worth £100 million did not want to share her pre-nuptial assets or wealth with her former husband when they divorced. His income was circa £30,000 pa, though he had a wealthy father. He had given up his job 8 years ago to look after their two children. Custody was shared 2/3 + 1/3 but this was not reflected in the financial settlement.

The parties were both foreign nationals, the wife German and the husband French, who had signed a pre-nuptial agreement valid under German law but then divorced in the UK. In the High Court Baron J had awarded the husband £5.6m even though the pre-nuptial agreement had stated that neither party would seek maintenance from the other in the event of divorce. The wife therefore appealed.

His total indebtedness in legal fees alone amounted to £800,000, of which his wife’s legal fees, which he was obligated to pay, totalled £50,000.

Appendix B 

The still born Family Law Act 1996 had provisions within it for marriage counselling to be given prior to divorce. The Act’s mandate was “to save savable marriages”. From the outset it was obvious that the marriage guidance and counselling services in Britain could not cope with current demand and would be overwhelmed by legislation that might bring a 10 fold increase.

The OCU (Order of Christian Unity) commissioned a survey, “Privatising Divorce ?” (pub Dec 1995), into the marriage and relationship counselling services in Britain.

Extract::  

Facts and figures – quick summary.

1. London Marriage Guidance – have over 100 counsellors based at 18 centres in London who see almost 800 clients weekly.

Couples are charged £40 per session which last 50 mins. Over 700 couples or individuals are waiting at any one time. They handle 5,659 cases and see 100 new clients each week. Married couples constituted 54% of counselling sessions and unmarried partners 46%.

2. Relate – has over 2,300 full and part-time counsellors working in 128 centres in England, Wales and Northern Ireland. It trains 350 counsellors and 30 psycho-sexual therapists per year. All are volunteers who have to pay for their tuition and training lasting over 2 years.  From 1990 to 1996 volume/demand has risen 50%. An average counselling course cost a couple £250.00.  10,000 couples and individuals are waiting for counselling at any one time.  65,000 initial interviews and 44,600 new cases are given every year. In all, Relate handles 396,200 sessions. Each of Relates centres is an autonomous independent charity federated to national Relate.

3. Marriage Care – formerly the Catholic Marriage Advisory Council has 73 local centres. They have monitored their client satisfaction rates and report that 91% of all clients felt they had been “helped” by their counselling. Their courses are accredited by The University of Leeds through the College of Ripon and York St. John.

[ The above groups] are comparatively well funded and professionally run. They have had a near-monopoly position in the market for many decades. However, their position may now be under threat with the emergence of a comparatively new entrant into the sector, namely “Employee Assistance” companies.

Originating in the US, “Employee Assistance” or “Employee Assist” companies have become a common sight in US commercial life. After many years building up experience in the US they have been imported by “multi-nationals” and recently privatised companies. They represent good value for money for these multi-nationals companies and assist with the demands placed on a company’s Personnel Department. These companies are dealt with in greater detail later in this paper. This new genre will probably make their presence felt in the UK. Counselling generally can be expected to grow and this new entrant may muscle in on the more lucrative or volume driven contracts. 

Appendix

Advice to separating parents
Health and Educational ‘problems’ that have long been associated with divorce and fatherless children.
Government has never drawn these ‘problems’ to the public’s attention. 

Some of these citations listed below date back to the 1960s and 1980s. They have been deliberately included is because their validity has never been questioned and their findings always validated.

In other words, they are as true to day as they were 30 or 40 years ago. Why society has chosen to ignore them for this period of time is an unanswered question.

For comparison purposes we cite, at Appendix D, a more modern version of the data compiled by Rebecca O’Neill (Civitas, Sept 2002). 

The following statistics are taken fromWhy Two Parents are Important” and support the view that children suffer when not in a two parent households:           

(see http://www.wisconsinfathers.org/twoparents.htm). 

Psychological Health Problems

Greater Psychological Health Problems

Single parent children are 3 to 4 times more likely to have emotional or behavioural problems (Zill and Schoenborn, National Center for Health Statistics, 1990), and 84% of teens hospitalized for psychiatric care come from single parent homes (1989 study, cited by Hewlett, ‘When the Bough Breaks’).

Higher Suicide Rates

Teenagers who attempt suicide are similar to non-suicidal teens in age, income, race or religion, but are more likely to have little or minimal contact with their father (Study of 752 families by New York Psychiatric Institute, cited by Hewlett). 75% of teenagers who commit suicide are from single parent homes (Elshtain, The Christian Century, 1993).

More Alcohol and Drug Abuse

18% of children with strict and involved fathers used drugs. 35% of children without fathers used drugs (1988 UCLA study, cited by Hewlett). Children in father-absent homes are 4.3 times more likely to smoke as children in father-present (Stanton, Oci, and Silva, 1994 survey of 1,037 15-year-olds).

Great Frequency of Sleep Disorders

More trouble falling asleep, more nightmares, and night terrors (Psychiatrist Alfred Messer, cited by Hewlett).

Persistent feelings of betrayal, rejection, rage, guilt, pain

Lasting for years with a renewed intensity at adolescence. Two-thirds [of father-absent children] yearned for the absent parent, one-half of those with an intensity we found profoundly moving. (Wallerstein and Kelly, 1980, Surviving the Break-up).

Lower self-esteem

This especially true for girls (Dr. Robert Fay presentation at NCMC conference, 1992) (Davidson, Life Without Father: America’s Greatest Social Catastrophe, Policy Review, 1990)

COGNITIVE / ACADEMIC ABILITY

Lower Academic Achievement

38% of elementary students from single parent homes were low achieving, while 23 % of both parent children were low achieving (Nat’l Assoc. of Elementary School Principals report, cited by Hewlett). 

30% of children from father-present homes were high achieving, while only 17% of children from father-absent homes were high achieving.

Lower Matha Scores

YaleUniversity study by Carlsmith, cited by Hewlett (Cortes and Fleming, 1968).

Greater Failure Rate

Elementary students from fatherless homes or homes with mother and a stepfather have to repeat
(National Center for Health Statistics study of 47,000 households by Deborah grades at a rate 2-3 times higher than children with both biological parents Dawson, 1991)

Lower SAT Scores

“Dramatic” lower scores for students from father-absent homes (ColumbiaUniversity & Bowling GreenStateUniversity study of 295 from father-absent homes and 760 from father-present homes (cited by Hewlett).

Lower IQ and Achievement

Children who lost fathers before age 5 scored lower on Otis Quick Test and Stanford Achievement Test as junior-high and high-school students (Santrock, 1972) (Hetherington, Cox, and Cox study, 1978) (Cortes and Fleming, 1968).

More Likely to Drop Out of School

Children from fatherless homes twice as likely to drop out of school (US Department of Health and Human Services, Survey on Child Health, 1993) less likely to attend college (Wallerstein, Family Law Quarterly, 1986).

ANTI-SOCIAL BEHAVIOR

Higher Rates of Criminal Behaviour

Fatherless children are twice as likely to become criminally involved (Margaret Wynn, 1964) -72% of adolescent murderers, 60% of rapists, and 70% of long-term prisoners grew up in father-absent homes (US Department of Justice data, 1991).

Greater Delinquency for Boys

87% of Wisconsin juvenile delinquents are a product of father-absent homes (Wisconsin Department of Health and Social Services, 1994). 70% of juveniles in state reform institutions grew up in father-absent homes (US Department of Justice data, 1988). Young black men raised without a father are twice as likely to engage in criminal activities (Hill and O’Neill, 1993) (Matlock in Adolescence) (Siegman, 1966; Anderson, 1968; Kelly and Baer, 1969).

Greater delinquency for girls      – –  (Monahan, 1957; Toby, 1957

More Violent misbehaviour in School

Children who exhibited violent misbehaviour in school were 11 times as likely to live without their father than children who did not violently misbehave (Sheline, Skipper, Broadhead, American Journal of Public Health, 1994).

 CHILD ABUSE

Greater chance of being physically Abused

Pre-schoolers living without their biological father were 40 times more likely to be a victim of child abuse as compared to like-aged children living with their father (Wilson and Daly in Child Abuse and Neglect: Biosocial Dimensions, 1987) premarital pregnancy, out-of-wedlock childbearing, and absent fathers are the most common predictors of child abuse (Smith, Hanson, and Noble, Child Abuse: Commission and Omission, 1980).

Greater Chance of Being Sexually Abused

69% of victims of child sexual abuse came from homes where the biological father was absent (Gomes-Schwartz, Horowitz, and Cardarelli, ‘Child Sexual Abuse Victims and their Treatment’, 1988).

HETEROSEXUAL ADJUSTMENT for DAUGHTERS 

More Difficulty in Interacting with Men and Male Peers

Daughters of divorcee’s aggressive, forward with boys and men. Daughters of widows shy and timid with boys and men (Hetherington, 1972).

Younger Marriages

Daughter of divorcees marry at younger age (Hetherington, 1972).

More Unwed Pregnancies

Girls from fatherless homes 111% (over 2X) more likely to have unwed pregnancy (Warren Farrell presentation at NCMC conference, 1992; Hetherington, 1972).

Higher Divorce Rates

Girls from fatherless home 92% (nearly 2 x) more likely to divorce (Warren Farrell presentation at NCMC conference, 1992; Hetherington, 1972).

HETEROSEXUAL ADJUSTMENT for SONS

Less Masculine, More Dependent Behaviour

(Santrock’s study of 4- and 5-year old, father-absent boys) (Rogers and Long’s study of 6- too 15-year-old boys where father employed away from home community, 1968) (Hetherington’s study of 9- to 12-year-old, father-absent boys, 1966).

GENERAL HEALTH

More Likely to Suffer Accidents and Injuries

Fatherless children are 20-30% more likely to experience accidents, injuries, and poisonings than did father-present children (Remez, Family Planning Perspectives, 1992). Compared to children living with father, fatherless children experience more accidental injury, asthma, frequent headaches, and speech defects (Dawson, Journal of Marriage and Family, 1991). 

Appendix D 

‘Experiments in Living: the Fatherless Family’ 

by Rebecca O’Neill (Civita, Sept 2002)

http://www.civitas.org.uk/pubs/experiments.php

Summary:

The experiment

  • Fewer children live with both their mother and their father
  • Routes into the fatherless family
    • Divorce
    • Births outside marriage
    • Changes in marriage and cohabitation
  • Is the married two-parent family a thing of the past?
    • Most people still believe in the ideal of marriage and do, in fact, get married

The Results: How does the Fatherless Family Affect Adults, Children and Society ?

  • Lone mothers
    • Are poorer
    • Are more likely to suffer from stress, depression, and other emotional and psychological problems
    • Have more health problems
    • May have more problems interacting with their children
  • Non-resident biological fathers
    • Are at risk of losing contact with their children
    • Are more likely to have health problems and engage in high-risk behaviour
  • children living without their biological fathers
    • Are more likely to live in poverty and deprivation
    • Have more trouble in school
    • Tend to have more trouble getting along with others
    • Have higher risk of health problems
    • Are at greater risk of suffering physical, emotional, or sexual abuse.
    • Are more likely to run away from home
  • Teenagers living without their biological fathers
    • Are more likely to experience problems with sexual health
    • Are more likely to become teenage parents
    • Are more likely to offend
    • Are more likely to smoke
    • Are more likely to drink alcohol
    • Are more likely to take drugs
    • Are more likely to play truant from school
    • Are more likely to be excluded from school
    • Are more likely to leave school at 16
    • Are more likely to have adjustment problems
  • young adults who grew up not living with their biological fathers
    • Are less likely to attain qualifications
    • Are more likely to experience unemployment
    • Are more likely to have low incomes
    • Are more likely be on income support
    • Are more likely to experience homelessness
    • Are more likely to be caught offending and go to jail
    • Are more likely to suffer from long term emotional and psychological problems
    • Are more likely to develop health problems
    • Tend to enter partnerships earlier and more often as a cohabitation
    • Are more likely to divorce or dissolve their cohabiting unions
    • Are more likely to have children outside marriage or outside any partnership

Effects on the Social Fabric

  • Increased crime and violence
  • Decreased community ties
  • A growing ‘divorce culture’
  • Cycle of fatherlessness
  • Dependence on state welfare

“ . . . . The weight of evidence indicates that the traditional family based upon a married father and mother is still the best environment for raising children, and it forms the soundest basis for the wider society.”

Appendix  E

Social Security Statistics, Table G2.07 1996 – 2010 (CSA)

The fallacy of dead beat dads irrevocably annexed to CS payments is here blown apart.

Using tables supplied by the CSA we see that unemployment and disability account for half or all non-payments or ‘zero’ payment of CS.

Its not that divorced or separated dads ‘won’t pay’, it’s more that they ‘can’t’ pay’ due to their own impoverishment.

The often heard generic designation of non-resident-fathers as dead beat dads thoughtlessly bandied about by the untutored is here shown to be erroneous and misplaced.  If it does apply it is to very few of fathers and is statistically insignificant.

To demonstrate the continuing nature of the problem, i.e. of impoverished fathers being taxed, the following tables cover the years 1996 to 2010.

Table G2.07 (below) refers to 1996 and of the total number assessed to pay CS (395,500) only 216.7 were actually employer and earning a living. The income was so low for 14,800 fathers that their assessment was £0 per week. Those in work and paying less than £4.80 per week totalled 87,700.

So pernicious was the original CS regime that even Income Support, designed for a single person’s needs, was attacked with 38,800 suffering a levy of not more than £4.80 per week.

1996

Table G2.07  CSA. Maintenance Assessments by Absent Parent’s Employment/ Benefit type (thousands), i.e. unemployedAll Assessments at31st  May 1996.

 

 

Full Maintenance Assessments (thousands, e.g. 395.5 =395,500)

 

Total

Earned Income

Income Support

UB/SB or IVB

Others

Interim MaintenanceAssessment

Total

395.5

217.6

127.5

23.3

27.0

89.2

£ 0.00

129.2

14.8

87.7

11.4

15.4

3.3

< £ 4.80

77.4

23.3

38.8

10.1

5.2

– –

< £ 10              

8.0

7.5

– –

0.2

0.3

– –

< £ 19

20.0

18.6

0.2

0.4

0.8

– –

< £ 29

24.5

23.3

0.1

– –

– –

– –

< £ 39

28.2

26.6

0.2

– –

– –

1.4

< £ 49

31.8

30.1

0.2

– –

– –

3.5

< £ 59

27.7

26.5

0.1

– –

– –

9.2

< £ 69

20.6

19.6

– –

– –

– –

2.9

< £ 79

13.9

13.6

– –

– –

– –

2.9

< £ 89

7.3

7.1

– –

– –

– –

1.5

< £ 99

3.6

3.5

– –

– –

– –

26.5

< £ 109

1.5

1.4

– –

– –

– –

14.5

< £ 119

0.9

0.8

– –

– –

– –

12.5

< £ 120 +

1.0

1.0

– –

– –

– –

– –

 

 

 

 

 

 

 

Weekly Av’ge Maintenance

£ 23.33

£ 38.22

1.01

3.91

10.87

£ 92.16

Source : Social Security Statistics Table G2.07 1996:- CSAThis table describes the source of income of absent parents, i.e. fathers, and the CS maintenancepayments made.

Of the 395,500 assessments barely 54% were levied against fathers who had an income.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1999

 

By 1999 both the numbers involved and the layout of Table G2.07 had changed.

There were now 864,000 maintenance assessments but despite this the number of unemployed fathers remained at approx 50%.

Footnotes:


[1] “Jobseekers’ allowance sex bias unlawful” (Court of Appeal), May 17 2001, The Times. (Hockenjos v Secretary of State for Social Security). This was in direct contravention of Article 1 of Directive 79/7/EEC, and of Article 3 and Article 4 and of Regulation 77 of the Jobseekers’ Allowance Regulations (SI 1996 No 207). Ref. Sprawson Report, child benefit DWP.


[1] Hockenjos v Secretary of State for Social Security) Court of Appeal, The Times, May 17th 2001 “Jobseekers’ Allowance sex bias unlawful”). “ .. . . .The principle of equal treatment means that there shall be no discrimination whatsoever on ground of sex either directly or indirectly…” – Article 1 of Directive 79/7/EEC, and Article 3  & Article 4, and of Regulation 77 of the Jobseekers’ Allowance Regulations (SI 1996 No 207).

[2] ‘One in five UK children ‘is living in poverty’ – UNICEF report (19/06/2001). See also “Child poverty Up” The Independent, 24th April 2007

[3] “Joint birth registration: promoting parental responsibility” 6/2007. Cm 7160.

[5] National Centre for Social Research

[6] ‘Mommy’s little secret’ , The Globe and Mail, By Carolyn Abraham, Saturday, December 14, 2002 http://www.canadiancrc.com/Newspaper_Articles/Globe_and_Mail_Moms_Little_secret_14DEC02.aspx

[7] “The Myth of Monogamy with her husband” by Barash & Barash, 2001. Also  ref Dr. Lipton.

[8] HMSO 1998, “Supporting Families” DWP 2011  http://www.dwp.gov.uk/docs/strengthening-families.pdf   pp 6 & 10.

[10] European Parliament http://www.europarl.europa.eu/news/public/story_page/047-112868-031-01-06-908-20110131STO12856-2011-31-01-2011/default_en.htm British MEP Marina Yannakoudakis (ECR) stressed that although 91% of single parents in EU are women, we should still use the notion of “lone parents”. Laura Alipranti underlined that in Sweden 26% of single parents are men whilst Rossana Trifiletti told the Hearing that single fathers are also poorer than natural families.

[11] See also “Divorce Matters” (pub 1984), p166.

[12] Royal Commission on Marriage and Divorce : report, 1951-1955. This prompted two documents; ‘The Field of Choice’, by the Law Commission and ‘Putting Asunder’ by the Archbishop of Canterbury. The latter believed that there shouldn’t be changes unless what amounted to a post-mortem could be undertaken for each petition. The Law Commission rejected this option preferring the easier and faster ‘irretrievable break down’ option to be claimed by one of the parties and which required no court investigation.

[14] “New family law could bring legal miser”, 20April 2007, hidden pitfalls in the Family Law (Scotland) Act 2006.   http://www.borderstoday.co.uk/news?articleid=2719392 .

[16] The Agency is also pursuing the estates of more than 600 deceased parents so their children will benefit http://7thspace.com/headlines/372341/uk_enforcement_effort_helps_keep_child_maintenance_flowing.html

[17] Hockenjos v Secretary of State for Social Security) Court of Appeal, The Times, May 17th 2001 “Jobseekers’ Allowance sex bias unlawful”). “ .. . . .The principle of equal treatment means that there shall be no discrimination whatsoever on ground of sex either directly or indirectly…” – Article 1 of Directive 79/7/EEC, and Article 3 & Article 4, and of Regulation 77 of the Jobseekers’ Allowance Regulations (SI 1996 No 207).

[18] Spawson Report (head of the Child Benefit Policy section, 1999) blamed the 1975 DWP computer system for the inability to share child benefit between parents when custody was shared.

[19] Rossana Trifiletti MEP, told the Hearing that single fathers were also poorer than natural families – European Parliament http://www.europarl.europa.eu/news/public/story_page/047-112868-031-01-06-908-20110131STO12856-2011-31-01-2011/default_en.htm

[20] National Survey of Child Support Agency Clients’ (DWP), http://research.dwp.gov.uk/asd/asd5/rrep152.pdf

[21] “Quickie” divorces, i.e. special measures divorce procedures, were first introduced in 1946.

[22] Quote; “The average mean yearly maintenance award in the CSA is £1,800. . . .” http://www.dwp.gov.uk/docs/strengthening-families.pdf

[24] Statutory Instrument No 1520 (July 2006) amends the Child Support Act 1991. Debts of over 6 years.

[25] “Feckless father cannot remember children’s names” BBC Panorama, 17 January 2011. http://news.bbc.co.uk/panorama/hi/front_page/newsid_9362000/9362089.stm

[26] Report from His Majesty’s Commissioners for inquiring into the Administration and Operation of the Relief of the Poor (1834), p 351.

[27] Maggie Gallagher, US Institute for Marriage and Public Policy.

[28] “Recovering child support” (Henshaw, 2006) Para 4 http://www.dwp.gov.uk/docs/henshaw-report-largeprint.pdf

[29] ibid

[34] “The rule of law that a father is the natural guardian of his legitimate child is abolished”. Children Act 1989, Part 2 (4),

[36] 38 Douglas G and Murch M, 2000, How parents cope financially on marriage breakdown, Joseph Rowntree Foundation.

[37] 39 Jarvis S and Jenkins S, 1999, Marital Splits and Income Changes, Institute of Social and Economic Research.]

[38] Department for Work and Pensions, 2006, Households Below Average Income 1994/95–2004/05.

State sanctioned kidnapping

‘Express & Star’  June 29th 2001 (p 28)

 This is the first case of ‘child kidnap’ by Social Services that we were made aware of and in which we became actively involved.  FRM (Fathers Rights Movement) members from the Wolverhampton area joined together to provide legal advice, publicity and moral support to the entire family.

This case pre-dates the very good work done by John Hemming MP (Lib Dem)  in turning a searchlight into this dark and nasty recess.

A father who brought the M6 at Great Barr to a standstill for four hours by dangling from a gantry above the carriageway and threatening to jump has walked free from court.

Judge David McCarthy sentenced Jason Biddulph, aged 28, to eight months in prison but suspended it for two years after hearing of his sorry life.

  • “I don’t think I have ever come across someone who has suffered so much exceptional misfortune in such a short period of time,” he said.

The judge told the defendant he accepted that he had been ‘driven’ to stage his dramatic protest against society by a number of factors including having his children taken away from him.

Danger

Judge McCarthy said that he had read reports and letters submitted on Biddulph’s behalf and added:

  • I don’t think I have ever seen anything quite like it.”

Biddulph, of Whittington Oval, Stechford, Birmingham, had earlier pleaded guilty to putting something across the M6 which caused a danger to road users and appeared yesterday at Wolverhampton Crown Court to be sentenced.

Prosecuting counsel Mr. Richard Ace told the court that the M6 near junction seven had to be closed for four hours, causing chaos, when father-of-five Biddulph clambered onto the gantry on May 10 this year.

He put a rope in the form of a noose around his neck when police tried to talk him down then dropped himself over the edge, clinging on only by his fingertips [ ‘clinging on only by his fingertips’ was an exaggeration but the noose was true – Ed ].

Both carriageways of the motorway, the busiest stretch in Europe, were brought to a standstill during the police operation to rescue the defendant.

Judge McCarthy, who also imposed a two-year supervision order on Biddulph, told him:

  • You endangered people and you caused a huge number of people an enormous amount of inconvenience and frustration.”

Defending counsel Mr. Pardeep Tiwana said his client was in desperate need of help because of his many problems, including losing his children to care.

After the case, Biddulph said he was pleased that the proceedings had berm finalised and added:

  • “The public were really unhappy because they were kept on the motorway for four hours.
  • “But I bet there were a lot of people in that queue who also had a beef against social services and knew exactly why I was doing it.”

His mother Anne Biddulph, who had applauded when Judge McCarthy passed sentence, said:

  • “I am not against social services keeping children in foster care, and neither is Jason if it’s the best thing for the children.”
  • “When they are in foster care we can have visits with them. What I am against is social services going down the adoption road when there are so many other options.”

Postscript:

Sadly, the last word we had from Mrs. Biddulph, Jason’s mother, a few months later was that Social Services were indeed offering up the children for ‘permanent’ adoption against the express wishes of the entire Biddulph family.

Bearing in mind all the above, when the Dept of Constitutional Affairs invited submissions in response to its Green Paper and Questionnaire regarding how courts operated, we included the following comments:

  •  Transparency is the element lacking in all custody cases – public law and private law cases. If the judiciary is not doing anything to be ashamed of, it should not fear reporting and publicity. The benefits for government and the freedom from fending off persistent criticisms are obvious. Anonymity might be needed on occasions but can be used is absolutely vital but should be limited as we have specified above.
  • We hold this view following the first case we dealt with in May 2001 when the secrecy surrounding the enforced legal adoption by the courts of Mr & Mrs Biddulph’s  5 children came to our attention. Mr. Biddulph was driven to protesting on the M6 motorway and holding up rush hour traffic. He was given no real reason for the enforced adoption of all his children by Birmingham social services and his parents and relatives were not allowed to foster or adopt them.
  • Instead his parents, and his wife’s parents who were in their  sixties or seventies were asked to collect any family memorabilia and place it in a tin box so that the children could be given the boxes when they reached their majority – by which time the grandparents would be dead. They would never again be seeing their grandchildren. They would have no idea where in the country the children would be living or even if they would be kept together.
  • This is not the conduct one expects from a ‘civilised’ state and we would do well to recall the consequences (and the shame) of the enforced ‘Germanisation‘ of Polish children during World War 2.

Ref.

Germanisation of Polish children, see:  http://www.dac.neu.edu/holocaust/Hitlers_Plans.htm#Germanizing%20action

See DCA Questionnaire Courts file – responses

UK Minister of Justice bought herself feminist research to say: “Courts do not treat non-resident parents unfairly”(‘Report’)

Mother and child

Mother and child

An independent study published today shows that family courts are making great efforts with considerable success to secure child contact, following divorce or separation.Most contact arrangements are settled without going to court as the majority of parents agree these for their children between themselves. But around 10% of parents who cannot agree seek a court order for contact.

 

The study found no evidence that courts are biased against non-resident parents as a group. The courts start from the principle there should always be contact unless there are very good reasons why not. In most cases the courts were successful in securing contact for the non-resident parent. Court proceedings often start with no contact at all yet most cases end up with face-to-face contact.

 

Justice Minister Bridget Prentice said:

‘The well-being of children is at the heart of the family justice system. Courts should be the last resort for people involved in contact disputes, as mediation can be quicker and less stressful.

 

UK Justice Minister Bridget Prentice (Labour Party)

UK Justice Minister Bridget Prentice (Labour Party)

‘Where contact cases do come to court, the child’s welfare is always the paramount consideration. Clearly in some circumstances, such as where there is poor parenting or even abuse, contact can be very damaging.

 

‘The government firmly believes that children should not be denied meaningful contact with their other parent, where this is safe.’

 

The study, by the Oxford University Centre for Family Law and Policy, looked at the perception that non-resident parents who go to court over contact arrangements following divorce or separation are awarded little or no contact for insubstantial reasons.

Addendum: April 2013 – At last an academic voice has joined our contention that the 10% figure is a nonsense. In written evidence to the Children and Families bill committee, Prof. Parkinson (author of Australia shared parenting law reform) poured scorn on the claim in child custody matters that “Only 10% choose to come to court over contact arrangements.”    In written evidence put before parliament he shows why it is wrong and unreliable  (http://www.publications.parliament.uk/pa/cm201213/cmselect/cmjust/739/739vw09.htm

This 10% figure has been cited extensively over the years and, for example, by Prof. Liz Trinder (and her inner circle inc. Jenn McIntosh), Peacey and Hunt (2008) and as far back as Joan Hunt & Ceridwen Roberts (2004).  For a brief review of its importance and impact see also “Parkinson’s cavalry crushes Norgrove’s big guns” http://equalparenting.wordpress.com/2013/05/05/16-2/.

 

However, the government has recognised that more needs to be done to help parents who cannot agree and who come to court to resolve their contact dispute. The Children and Adoption Act 2006, due to be implemented in the autumn, amends the Children Act 1989 to give new powers to the courts to help parents overcome barriers to contact and will give the courts further flexible powers to enforce contact orders.

 

Notes to editors

1) The study: Outcomes of applications to court for contact orders after parental separation or divorce and summary briefing note.

2) Approximately a quarter of the 12 million children in the UK are affected by their parents’ separation or divorce (DCA, DfES, DTI, 2004). Around 90% will reside mainly with one parent (the ‘resident parent’), typically the mother, (Peacey and Hunt, 2008). Only 10% choose to come to court over contact arrangements. Fathers, who are usually the non-resident parent, make the majority of contact applications.

3) Parents who cannot agree can apply to the court for a contact order under Section 8 of the Children Act 1989, which is governed by the welfare principle: section 1(1). This means that the child’s interests must be the paramount consideration.

4) In 2005, the government announced a range of practical measures to improve the handling of contact cases and the information, help and advice available to separating parents:

> <!Parental separation: children’s needs and parents’ responsibilities – next steps [PDF 0.96mb, 41 pages]

5) A key measure was new legislation: the Children and Adoption Act 2006

6) Family Mediation website

7) For further media enquiries please call the Ministry of Justice press office on 020 3334 3536 or email Alia Syed.

 

Press Office

 

Related links

 

 

Outcomes of applications to court for contact orders after parental separation or divorce

Source: UK – Ministry of Justice – by Joan Hunt and Alison Macleod, Oxford Centre for Family Law and Policy, Department of Social Policy and Social Work, University of Oxford – Published on: 25 September 2008

 

When divorced or separated parents cannot agree on contact arrangements for their children and come to court, the court must make a decision under the Children Act 1989 and give paramount consideration to the welfare of the child.

 

This study shows the outcomes of when parents go to court, how much contact they get, and how this compares to what they applied for. The study also addresses the perception that non-resident parents as a group are treated unfairly by the courts.

 

Related links

 

 

Relationship breakdown

Source: Ministry of Justice

 

Parental separation is more common today than in the past. When contact disputes are handled badly, children can suffer. We are developing measures to improve information and advice to parents, promote alternative ways to resolve disputes, such as in-court conciliation, and mediation. We also aim to give the courts more flexible powers in contact cases through the Children and Adoption Act 2006.

 

We are responsible for family justice, while the Department for Children, Schools and Families (DCSF) has responsibility for children, young people and families. We are working jointly with them and a range of partners to deliver these policies.

 

Contact us: emailor telephone 020 7210 8523

 

Other helpful sites and services

 

Related links

 

Outcomes of applications to court for contact orders after parental separation or divorce

Briefing Note

Joan Hunt and Alison Macleod

Oxford Centre for Family Law and Policy

Department of Social Policy and Social Work

University of Oxford

Family Law and Justice Division

September 2008

 

Acknowledgements

Eleven courts took part in this study. We are grateful to the court managers and other staff who, despite many other pressing demands on their time, assisted us in locating files; provided transcripts and made our visits to the courts productive and pleasant. Although we selected the courts the court service made the initial approach and secured participation, which was very helpful in getting the project underway. The support of the President of the Family Division was also of enormous assistance. Finally we would like to thank our interviewees – judges, district judges, magistrates and their legal advisors, solicitors and Cafcass staff – whose insights considerably enriched the study findings.

Authors

Joan Hunt is Senior Research Fellow in the Oxford Centre for Family Law and Policy, which is part of Oxford University’s Department of Social Policy and Social Work.She has conducted several empirical research studies on children and families subject to family court proceedings, undertaken a review of research on contact after parental separation and prepared two policy briefing papers on contact, the first providing an overview of the issues, the second examining innovative approaches used in other countries. She is currently working on a national survey of separated families, most of whom have not taken their disputes to court, and a review of research into parents’ experiences of the family justice system.Alison Macleod was a Research Associate in the Centre for Family Law and Policy for the duration of the study and prior to this was a senior researcher worked in the University of Bristol’s Socio-Legal Centre for Family Studies. A solicitor by profession, she has participated in, or directed, many research projects on families involved in court disputes in both public and private law.

Disclaimer

The views expressed are those of the authors and are not necessarily shared by the Ministry of Justice.

Outcomes of applications to court for contact orders after parental separation or divorce

Joan Hunt and Alison Macleod

Oxford University Centre for Family Law and Policy

 

Genesis of the study

The study was commissioned as the result of a commitment given by the government to Parliament in the course of the passage of the Children and Adoption Act, 2006.The aim of this legislation, as far as the contact-related provisions were concerned, was to provide courts with a greater range of powers to facilitate and enforce contact1. However much parliamentary time was devoted to debating proposed amendments which would introduce a statutory, rebuttable presumption of, under varying guises, minimum levels of contact, into the Children Act, 1989. At the heart of these attempts to change the law were concerns about non-resident parents who went to court for a contact order but ended up with little or no contact for insubstantial reasons.

The government strongly resisted all arguments for introducing a statutory presumption of contact, let alone any particular quantity of contact, on the grounds that a) the courts already started from the point that contact was to be promoted unless there were good reasons to the contrary and b) that a statutory presumption would undermine the fundamental basis of the Children Act, the paramountcy of the interests of the child. It was acknowledged, however, that there was little statistical data on the outcomes of court proceedings. As Baroness Ashton, for the government, put it,

I believe that the time has come for us to look very carefully at repudiating some of the anecdotal evidence and to consider carefully what has happened in the court. To understand more about the process we shall research what happens when the courts start with a desire for contact and see what the final orders are2.

And later:

I recognise the concern at the heart of many of the issues, that is, those parents, often non-resident fathers, who do not get a fair deal. I repeat the commitment I gave…during the previous stage of the Bill: I intend to commission new research to establish a proper evidence base. I will go further, if the research recognises the problem that noble Lords have raised with me anecdotally, I will take action to address it. I am at one with noble Lords in recognising the critical importance of establishing the evidence base3.

This study was commissioned to give effect to that commitment.

The issues

When parents separate or divorce less than one in 10 seek the assistance of the family courts in making decisions about contact arrangements for their children. In making such a decision the court under the Children Act 1989 must give paramount consideration to the welfare of the child.

What are the outcomes when parents do go to court? How many non-resident parents end up with no contact? When they get contact, how much do they get?How does this compare with what they were seeking? If there is a discrepancy what explains this?

Key points

Outcomes were typically agreed. It was rare for the court to have to make a final ruling.

Most cases ended with face to face contact. Where they did not this was usually because the applicant withdrew from proceedings.

Contact typically involved overnight stays, at least fortnightly, with some children having additional visiting contact. Visiting contact was usually weekly or more and was almost always unsupervised.

Non-resident parents were largely successful in getting direct contact where there had been none and in getting the type of contact sought.

Those who achieved staying contact usually got the amount they sought, those with visiting contact mainly did not. Applications to enforce previous orders were unusual and rarely wholly successful.

Non-resident parents were almost twice as likely to succeed in getting the type of contact they wanted as resident parents who initially opposed staying, unsupervised contact or any contact.

Four in five resident parents who opposed unsupervised contact raised serious welfare concerns.

The initial position of the resident parent and whether they raised serious welfare issues were significantly related to outcome, as were the age of the child, whether there was any contact at the point the application was made and the interval since the child was last seen.

There was no evidence that non resident parents as a group are systematically unreasonably treated by the family courts. On the contrary, the study shows that the courts start from the position that contact is generally in the interests of the child, they make great efforts to achieve this and in most instances they are successful. In a small minority of cases, however, it might be argued that the outcome was unfair to the non-resident parent

The study

The main element in the research was a detailed analysis of court files in 308 cases with a contact application in 2004. The applicants were almost all (289; 77%) nonresident parents, typically fathers (265). Where there was more than one child in the case full data was collected on only one, randomly selected. In 236 cases this was the first set of contact proceedings. The cases were drawn from five family proceedings courts and six county courts, distributed across all six court circuits, covering a mix of rural and urban areas, and courts which handled low, medium and high volumes of contact cases. The findings are therefore likely to reflect the national picture.

The file study was supplemented with an analysis of transcripts of 102 court hearings, covering 43 cases, in the county courts, plus interviews with solicitors (27), Cafcass officers (23) magistrates (8) legal advisors to the family proceedings courts (5) district judges (9) and circuit judges (4).

Findings

 

Outcomes 4

The court rarely had to make a final ruling on contact. Most outcomes were reached by agreement or by one party withdrawing.

A mere 32 cases (11% of 292) went to a contested final hearing of which at least 11 settled in the course of the hearing.

Almost three quarters of cases (213 of 288) were known to have ended by agreement. This included 25 of the 44 cases in which the application was withdrawn, 15 of the 21 with an order of no order and 173 of the 203 where a contact order was made. Only 19 cases were dismissed.

Applications which ended with no contact at all were most likely to be formally withdrawn (18 of 39) or effectively abandoned (17). Only four were dismissed after a contested hearing.

Non-resident parents typically began the proceedings having no contact and ended them with an order or agreement for direct contact.

At the start of the proceedings only 28% of non-resident parents (83 of 294) had direct contact with their children.

By the end of proceedings 79% of parents (225 of 286) had an order or agreement for face to face contact. In 7% there was to be indirect contact and in 14% no contact at all.

The most common outcome was staying contact, which rarely took place less than fortnightly and was sometimes supplemented with visiting contact.

139 cases (49% of 286 in which the outcome was known, and 62% of 225 in which there was to be direct contact) ended in staying contact.

In 89% of these (109 of 122 on which information was available), overnights were at least fortnightly, with 40 more frequent. Stays were typically for one (45% of 114) or two (43%) nights at a time with the average length of stay per fortnight being 51 hours fortnightly.

35% of children (48 of 139) also had visiting contact, adding an average of 8 more hours contact per fortnight.

Overall, in 59% of cases (66 of 111) children were expected to have direct contact on four or more days a fortnight with 32% having six or more contacts and only 5% less than two .

The average combined contact time was 55 hours per fortnight. Threequarters (70) were to have between 25 and 72 hours and 17% (16) more than this (range 14 to 137 hours).

The next most common outcome was unsupervised visiting contact, usually at least weekly.

58 cases (20% of all known outcomes and 28% of those allowing direct contact) ended in unsupervised visiting contact.

Frequencies varied from five times a week to four times a year, with an average of 2.2 a fortnight. 61% of children (31 of 51) had weekly (19) or more frequent contact (12); only three less than fortnightly.

The average length of a visit was 5.4 hours, ranging from one to 10 hours.

48% of visits (21 of 44) were between six and 10 hours.

The average contact time per fortnight was 10.3 hours, ranging from one exceptional case with contact for only one hour four times a year to just over 12 hours a week.

Supervised contact was very unusual as a final outcome (11; 4% of 286) and only two cases involved the use of a contact centre. In most cases contact was expected to be at least weekly.

 

The relationship between the contact sought and obtained 5.

 

Most non-resident parents succeeded in obtaining contact where they had had none before and getting the type of contact sought.

70% of those who sought to establish/re-establish direct contact (129 of 184) succeeded.

Where there was to be direct contact 78% of those who sought overnight stays (110 of 142) got them.

Where there was to be only visiting contact, 94% of those who wanted this on an unsupervised basis succeeded (60 of 64).

 

Those who achieved staying contact typically got the amounts sought.

67% achieved the desired frequency (41 of 62).

67% obtained the length of stay they asked for (26 of 39)

79% got the additional visiting sought (19 of 24)

Those who only obtained visiting contact mainly did not get as much as they wanted, although the data was very limited.

Only 5 (of 12) got the frequency wanted.

Only 2 (of 6) got the duration.

8 (of 12) did not get either.

 

Applications to give effect to previous orders or agreements rarely completely succeeded

Only 8 applicants (of 26) succeeded in getting the original arrangements reinstated and, where sought, a penal notice attached.

4 got the order confirmed but not the penal notice requested.

14 did not succeed in any respect, 10 getting no direct contact, two having their contact reduced and two getting defined orders changed to either reasonable contact or as and when the child wanted contact.

Overall, non-resident parent applicants stood an even chance of getting everything they had initially sought.

Just under a third (85; 32%) did not achieve the type of contact they had sought at the start of the case: 56 did not achieve direct contact; 25 got visiting rather than staying; four got visiting but only supervised.

A further 43 (16%) did not achieve everything they wanted in terms of frequency or duration.

Four more did not get the penal notice sought although they succeeded in getting the previous arrangements reinstated or even improved on.

In total 49% of non-resident parent applicants (132 of 269) did not get everything they had originally asked for.

 

Resident parent respondents were much less likely than non-resident parents to be successful in achieving their initial objectives6

60% (98 of 163) of resident parents initially opposed to staying, unsupervised or any direct contact did not achieve this: o 56% (55 of 99) failed to prevent direct contact.o 72% (26 of 36) failed to prevent unsupervised contact.o 61% (17 of 28) failed to prevent staying contact.

In contrast, only 32% of non-resident parents failed to achieve their objectives in terms of getting contact established and getting the type of contact they sought.

 

The prevalence of welfare concerns

 

Serious welfare issues were raised in the majority of cases.

In 54% of cases (167 of 308) the resident parent raised concerns over serious welfare issues: domestic violence (34%); child abuse or neglect (23%); parenting capacity affected by drug abuse (20%), alcohol abuse (21%), mental illness (13%) or learning difficulties(1%); fear of abduction (15%). The proportion rose to 82% of cases (89 of 108) where the resident parent initially opposed any direct contact.

In a further 27 cases there had been such welfare concerns in the past, although they were not raised as an impediment to contact in the sample proceedings, while in 41 cases there were past welfare concerns in addition to those being raised in these proceedings.

Only 114 cases (37% of 308) were entirely free of serious concerns. Allegations of domestic violence at some point featured in half the cases (154).

Explaining the outcomes

 

Certain key factors were linked 7 with the outcome in terms of whether

there would be any direct contact and the type of contact although none was invariably determinative.

1. Whether the resident parent had raised serious welfare concerns.

85% of cases ending in no contact involved such concerns compared with 81% with indirect contact; 73% with supervised visiting, 47% unsupervised visiting and 42% staying contact.

But, 60% of cases involving welfare concerns ended with staying or unsupervised visiting contact.

2. The position of the resident parent at the start of the case.

In 69% of cases ending with no contact and 76% of those with only indirect contact, the resident parent had opposed any contact (compared with 22% with staying contact).

But, 57% of cases in which the resident parent had opposed contact ended in direct contact, 32% in staying contact.

3. Whether there was any contact at the point the application was made.

In 46% of cases ending in staying contact there was some contact at the outset compared with none of those ending in indirect contact and 8% of those with no contact at all.

But, 65% of cases with no contact at the outset ended in direct contact.

4. The interval since the child was last seen.

76% of parents who got staying contact had seen their child within the past three months, compared with only 19% of those who got indirect contact and 24% of those with no contact at all.

But, 55% of parents who had not seen their child for more than six months ended up with direct contact.

5. The age of the child at the end of the proceedings

8 of the 13 cases involving teenagers and 30% of the 49 with children between 10 and 12, ended in no direct contact compared with only 16% of those with children aged 5-9. This was linked to the greater likelihood that the court would take more notice of the opposition of older children. All the teenagers opposing contact had their views respected, compared with just over half of those aged 5-9.

Where there was to be contact overnights usually involved older children. However 41% of children under 3 were to have overnight stays.

Those with supervised contact tended to be the youngest (mean 3.9 years).

 

Why did some non-resident parents not achieve what they had sought?

 

Those who did not achieve direct contact

These outcomes were rarely the result of a court decision (7 of 61; 11%). Typically (39; 64%) non-resident parents formally withdrew, dropped out partway through, did not turn up to the final hearing or, while not consenting to the outcome, did not actively oppose it. Several did not cooperate with the court process.We concluded there were at most 10 cases in which the outcome of no direct contact could be regarded as unfair to the non-resident parent in that there were no serious welfare concerns and they had cooperated with the process. Six involved children resolutely opposed to contact, four resident parents who might be seen as ‘implacably hostile’.

 

Those who did not achieve the type of contact they sought

There were many reasons why staying contact was not achieved, from the contact parent’s continuing use of drugs to the child’s or the resident parent’s refusal. There were some where contact restarted early in the proceedings and the contact parent may have decided not to ‘rock the boat’ by pursuing staying and others where achieving any contact had been so difficult they probably gave up the attempt and settled for what they could get.

Of these 20 cases (only one of which had a contested final hearing) there were two which were clearly unfair in terms of either process or outcome and three which were nearer that end of the spectrum. Three were patently not unfair, given the welfare issues. The rest were difficult to determine.

In nine cases the non-resident parent ended up with supervised contact having originally sought unsupervised or even staying contact. None went to adjudication.Only one outcome seemed to us to be unfair to the non-resident parent. In contrast six were clearly justified by the welfare concerns. In the two remaining cases there was insufficient information to make a judgement.

 

Those who did not achieve the amount of contact they sought

Thirty-five of those who achieved staying contact did not obtain everything they had sought. However all but eight were at least partially successful (getting either the frequency they wanted, duration, number of overnights, additional staying contact or overall hours). Indeed in 15 the total package probably represented a positive outcome in terms of the actual amount of staying contact, which probably explains why these non-resident parents did not persist with their original demands. Only eight cases went to a contested final hearing. While most tended to favour the resident parent on the narrow issues by then at stake, the picture looks rather different if one takes into account that in several cases the resident parent had originally opposed unsupervised contact. Non-resident parents may have lost the final ‘battle’ but they had generally won ‘the war’.

The yardstick used to assess ‘fairness’ was the arrangements typically made in other cases and whether there were circumstances which might have explained the outcome. This suggested a maximum of 10 cases in which the outcome might be seen as ‘unfair’: five in terms of frequency; seven duration, and two the refusal of midweek overnights.

None of the eight cases in which applicants achieved unsupervised visiting contact but not the amount they wanted went to a contested hearing. It was impossible to tell why these parents settled for less. However it seems probable that since in seven the resident parent had initially opposed either any contact at all or unsupervised contact they decided to be content with the considerable amount they had achieved.There was only one case in this group in which the outcome might be considered to be unfair.

Those who failed to get a previous order or agreement made effective

Although the circumstances in these cases were very varied there were two common factors: the resident parent had voiced serious welfare concerns and/or the child was refusing contact. A careful analysis of the data revealed only two in which we considered the court should have been more robust. .

Are non-resident parents treated fairly by the courts?

 

The views of our solicitor interviewees can be summed up as follows:

1. The courts and Cafcass are not biased against non-resident parents, who generally get a fair deal. But,

2. Resident parents start off from a position of strength and it is easy for them to spin things out; some applicants give up because the process is too long and costly, both financially and emotionally;

3. Some resident parents and children remain persistently opposed to contact and the court’s abilities to deal with this are limited, and

4. At the end of the day the court has to act in the interests of the children and sometimes that means the non-resident parent may lose out.

While generally giving a positive picture of the court process, our file data also indicated cases in which non-resident parents might have reason to feel aggrieved.However this is not because the courts are biased against them. It was clear from file, transcript, and interview data that courts, lawyers and Cafcass start from the principle that there should normally be contact and they make considerable efforts to bring this about. The fact that they are not always successful should not tempt us into accusing the system of favouring resident parents. Indeed it would be easier to make the opposite argument.

Solicitors, the judiciary and Cafcass officers saw the resistance of the resident parent and/or the child as the two main obstacles to achieving contact. Often these could be overcome; implacable hostility was considered to be quite rare. Our data supports this: there were only 10 cases in the sample in which non-resident parents ended up with no contact because of persistent hostility which did not appear to have any basis in the non-resident parent’s behaviour. This works out at under 4% of the 275 completed applications by non-resident parents.

The resident parent’s ‘unreasonable’ hostility is typically addressed initially through persuasion, with sterner measures coming into play if this fails. Most resident parents come round; a few do not. Eventually the non-resident parent gives up or the court, very reluctantly, has to acknowledge it can do no more with its current powers and resources. Dealing with the child’s hostility is even more testing. It may be very difficult to get at the root of the problem. It also poses two dilemmas. First, how to balance the obligations to take account of a child’s views and to act in the child’s long term interests. Second, how long to persist trying to get contact going when this may expose the child to the damaging effects of uncertainty and conflict.

The family justice system is not perfect. There are issues about delay, resources and services which need addressing in order to meet the needs of the troubled minority of families who resort to litigation most effectively. Adults have a right to a process which is as fair as possible. It is crucial, however, to focus on children and give effect to the overriding principle of the Children Act, the paramountcy of the interests of the child.

Footnotes

 

1 The Bill was the result of a lengthy process of consultation and consideration beginning with the work of the Children Act Sub-Committee on the Facilitation and Enforcement of Contact, followed by the Green Paper ‘Parental Separation: Children’s Needs and Parents’ Responsibilities and the Government’s Response ‘Next Steps’ . A draft bill was also issued for pre-legislative scrutiny and considered by a Joint Parliamentary Committee.

2 Lords Hansard Text 14 Nov, HL col 861

3 Lords Hansard Text 29 Nov, HL col 200

4 Of the sample of 308 cases 10 had not completed by the end of the data collection period. Six had to be excluded because either the contact parent had died or the parents had reconciled. In six there was no data on the outcome; in one there was to be no direct contact but it was unclear whether there would be indirect and in 17 either the type of face to face contact was not known (15) or this was left to the child (2). In some of the remaining cases detail was lacking. The numbers on which percentages are calculated, therefore, will vary.

5 Detailed information was not always available on both what the applicant sought and what they obtained. Numbers in relation to visiting contact were particularly small.

6 Information on the resident parent’s position at the start of the proceedings was generally limited to whether they were opposing a particular type of contact or any contact at all. It was unusual for their views on the amount or frequency of contact to be known at this point.

7 All the factors cited were statistically significant (ie the association was unlikely to be a matter of chance).

Soviet roots of todays family law and divorce system

1. The 1918 Soviet Russian “Family Code on Marriage, The Family, and Guardianship”
Answers.com – WENDY GOLDMAN

The Russian Central Executive Committee of Soviets ratified the Code on Marriage, the Family, and Guardianship in October 1918, one year after the Bolsheviks took power. Alexander Goikhbarg, the young author of the Code, expected that family law would soon be outmoded and “the fetters of husband and wife” unnecessary. Goikhbarg and other revolutionary jurists believed children, the elderly, and the disabled would be supported under socialism by the state; housework would be socialized and waged; and women would no longer be economically dependent on men. The family, stripped of its social functions, would “wither away,” replaced by “free unions” based on mutual love and respect. The Code aimed to provide a transitional legal framework for that short period in which legal duties and protections were still necessary.

Prerevolutionary jurists had attempted throughout the late nineteenth century to reform Russia’s strict laws on marriage and divorce, but achieved little success. Up to 1917, Russian law recognized the right of religious authorities to control marriage and divorce. Women were accorded few rights by either church or state. According to state law, a wife owed her husband complete obedience. She was compelled to live with him, take his name, and assume his social status. Up to 1914, a woman was unable to take a job, get an education, or execute a bill of exchange without her husband’s consent. A father held almost unconditional power over his children. Only children from a legally recognized marriage were considered legitimate, and illegitimate children had no legal rights or recourse. Up to 1902, when the state enacted limited reforms, a father could recognize an illegitimate child only by special imperial consent. The Russian Orthodox Church considered marriage a holy sacrament, and divorce was almost impossible. It was permissible only in cases of adultery (witnessed by two people), impotence, exile, or unexplained and prolonged absence. In cases of adultery or impotence, the responsible party was permanently forbidden to remarry.

The 1918 Code swept away centuries of patriarchal and ecclesiastical power and established a new vision based on individual rights and gender equality. It was predated by two brief decrees enacted in December 1917 that substituted civil for religious marriage and established divorce at the request of either spouse. The 1918 Code incorporated and elaborated on these two decrees. It abolished the inferior legal status of women and created equality under the law. It eliminated the validity of religious marriage and gave legal status to civil marriage only, creating a network of local statistical bureaus (ZAGS) for the registration of marriage, divorce, birth, and death. The Code established no-grounds divorce at the request of either spouse. It abolished the juridical concept of “illegitimacy” and entitled all children to parental support. If a woman could not identify the father of her child, a judge assigned paternal obligations to all the men she had sexual relations with, thus creating a “collective of fathers.” It forbade adoption of orphans by individual families in favor of state guardianship: jurists feared adoption, in a largely agrarian society, would allow peasants to exploit children as unpaid labor. The Code also sharply restricted the duties and obligations of the marital bond. Marriage did not create community of property between spouses: a woman retained full control of her earnings after marriage, and neither spouse had any claim on the property of the other. Although the Code provided an unlimited term of alimony for either gender, support was limited to the disabled poor. The Code presumed that both spouses, married or divorced, would support themselves.

The 1918 Code was very advanced for its time. Comparable legislation on equal rights and divorce would not be passed in Europe or the United States until the end of the twentieth century. Yet many Soviet jurists believed that the Code was not “socialist” but “transitional” legislation. Goikhbarg, like many revolutionary jurists, expected that law, like marriage, the family, and the state, would soon “wither away.

The Code had a significant effect on the population, both rural and urban. By 1925, Soviet citizens had widely adopted civil marriage and divorce. The USSR displayed a higher divorce rate than any European country, with fifteen divorces for every one hundred marriages. The divorce rate was higher in the cities than in the rural areas, and highest in Moscow and Leningrad. In Moscow, there was one divorce for every two marriages. Soviet workers, women in particular, suffered high unemployment during the 1920s, and divorce proved a special hardship for women who were unable to find work. Peasant families found it difficult to reconcile customary law with the autonomous property provisions of the Code. After extensive debate, Soviet jurists enacted a new Family Code in 1926 to redress these and other problems.

Bibliography

  • Berman, Harold. (1963). Justice in the USSR: An Interpretation of Soviet Law. Cambridge, MA: Harvard University Press.
  • Goldman, Wendy. (1993). Women, the State and Revolution: Soviet Family Policy, 1917 – 1936. New York: Cambridge University Press.
  • Hazard, John. (1969). Communists and Their Law. Chicago: University of Chicago Press.
  • Stites, Richard. (1978). The Women’s Liberation Movement in Russia: Feminism, Nihilism and Bolshevism, 1860 – 1930. Princeton, NJ: Princeton University Press.
  • Wood, Elizabeth. (1997). The Baba and the Comrade: Gender and Politics in Revolutionary Russia. Bloomington: Indiana University Press.

2. Soviet Russian Family Code of 1926
Answers.com—WENDY GOLDMAN

In 1926 the Soviet government affirmed a new Code on Marriage, the Family, and Guardianship to replace the 1918 version. Adopted after extensive and often heated nationwide debate, the new Code addressed several social issues: the lack of protection for women after divorce; the large number of homeless orphans (besprizorniki); the incompatibility of divorce and common property within the peasant household; and the mutual obligations of cohabiting, unmarried partners.

The new Code promoted both individual freedom and greater protection for the vulnerable. It simplified the divorce procedure in the 1918 version even further by transferring contested divorces from the courts to local statistical bureaus. Either spouse could register a divorce without the partner’s consent or even knowledge. This provision removed the law’s last vestige of authority over the dissolution of marriage, circumscribing both the power of law and the marital tie. The Code recognized de facto marriage (cohabitation) as the juridical equal of civil (registered) marriage, thus undercutting the need to marry “legally.” It provided a definition of de facto “marriage” based on cohabitation, a joint household, mutual upbringing of children, and third party recognition. It established joint property between spouses, thus providing housewives material protection after divorce. It abolished the controversial practice of “collective” paternity featured in the 1918 Family Code. If a woman had sexual relations with several men and could not identify the father of her child, a judge would assign paternity (and future child support payments) to one man only. The Code incorporated an April 1926 decree that reversed the prohibition on adoption and encouraged peasant families to adopt homeless orphans, who were to be fully integrated into the peasant household and entitled to land. It set a time limit on alimony to one year for the disabled and provided six months of alimony for the needy or unemployed. It also created a wider circle of family obligations by expanding the base of alimony recipients to include children, parents, siblings, and grandparents.

Bibliography

  • Farnsworth, Beatrice. (1978). “Bolshevik Alternatives and the Soviet Family: The 1926 Marriage Law Debate.” In Women in Russia, eds. Dorothy Atkinson, Alexander Dallin, Gail Warshovsky Lapidus. Sussex, UK: Harvester Press.
  • Goldman, Wendy. (1984). “Freedom and Its Consequences: The Debate on the Soviet Family Code of 1926.” Russian History 11(4):362 – 388.
  • Goldman, Wendy. (1991). “Working-Class Women and the ‘Withering-Away’ of the Family: Popular Responses to Family Policy.” In Russia in the Era of NEP: Explorations in Soviet Society and Culture, eds. Sheila Fitzpatrick, Alexander Rabinowitch, Richard Stites. Bloomington: Indiana University Press.
  • Lapidus, Gail Warshovsky. (1978). Women in Soviet Society. Berkeley: University of California Press.
  • Quigley, John. (1979). “The 1926 Soviet Family Code: Retreat from Free Love.” Soviet Union 6(2):166 – 74.

3. Soviet Russian Family Laws of 1936
Answers.com—WENDY GOLDMAN

In 1936, the Soviet state enacted several laws that sharply departed from previous legislation. The Soviet Union had been the first country in the world to legalize abortion in 1920, offering women free abortion services in certified hospitals. In 1936, however, the Central Executive Committee outlawed abortion. Anyone who performed the operation was liable to a minimum of two years in prison, and a woman who received an abortion was subject to high fines after the first offense. The new law offered monetary incentives for childbearing, providing stipends for new mothers, progressive bonuses for women with many children, and longer maternity leave for white-collar workers. The criminalization of abortion reflected growing anxiety among health workers, managers, and state officials over the rising number of abortions, the falling birth rate, the shortage of labor, and the possibility of war.

The law also made divorce more difficult and stiffened criminal penalties for men who refused to pay alimony or child support. It required both spouses to appear to register a divorce and increased costs for the first divorce to fifty rubles, 150 rubles for the second, and three hundred rubles for the third. It set minimum levels for child support at one – third of a defendant’s salary for one child, fifty percent for two children, and sixty percent for three or more, increasing the penalty for nonpayment to two years in prison.

The law was part of a longer and larger public campaign to promote “family responsibility” and to reverse almost two decades of revolutionary juridical thinking. In April 1935, the Council of People’s Commissars (Sovnarkom) granted the courts sweeping new powers to try and sentence children aged twelve and older as adults; this resulted in mass arrests and imprisonment of teenagers, mostly for petty theft. In May 1935 the local Commissions on the Affairs of Minors were abolished, and responsibility for all juvenile crime was shifted to the courts. Punishment replaced an earlier commitment to pedagogical correction. The 1936 laws also marked a turn in attitudes toward law and family. Jurists condemned as “legal nihilism” earlier notions that the law and the family would “wither away.” Many legal theorists of the 1920s, including Yevgeny Pashukanis and Nikolai Krylenko, were arrested and shot.

Bibliography

  • Goldman, Wendy. (1991). “Women, Abortion, and the State, 1917 – 1936.” In Russia’s Women: Accommodation, Resistance, Transformation, eds. Barbara Clements, Barbara Engel, Christine Worobec. Berkeley: University of California Press.
  • Goldman, Wendy. (1993). Women, the State, and Revolution: Soviet Family Policy and Social Life, 1917 – 1936. New York: Cambridge University Press.
  • Sharlet, Robert. (1984). “Pashukanis and the Withering-Away of Law in the USSR.” In Cultural Revolution in Russia, 1928 – 31, ed. Sheila Fitzpatrick. Bloomington: Indiana University Press.

4. Soviet Russian Family Edict of 1944
Answers.com—REBECCA BALMAS NEARY

This decree of the Presidium of the Supreme Soviet claimed to “protect motherhood and childhood.” Amid deep concern for wartime manpower losses and social dislocation, the decree sought to increase natality and reinforce marriage.

The law’s best – known provisions rewarded prolific mothers and made divorce more difficult to obtain; its pro-natalism and support for marriage reinforced prewar trends apparent in the Family Laws of 1936. Pro-natalist measures included family allowances paid to mothers regardless of marital status, extended maternity leave, protective labor legislation for pregnant and nursing women, and an ambitious plan to expand the network of childcare services and consumer products for children. Bearers of ten or more living children were honored as “Mother – heroines.”

Other provisions tightened marital bonds by making divorce more onerous. Proceedings now took place in open court, with both parties present and the court obligated to attempt reconciliation. The intent to divorce was published in the newspaper, and fines increased substantially. Reversing the 1926 Family Code, only registered (not common – law) marriages were now officially recognized. The state also reestablished the notion of illegitimacy: only children of registered marriages could take their father’s name and receive paternal child support.

The legislation had no significant lasting effect on birth or divorce rates. Despite its ambitious goals, promises of augmented childcare services and consumer goods went unfulfilled, given postwar economic devastation and prioritization of defense and heavy industries. The law’s greatest significance was perhaps as a manifestation of the ongoing Soviet effort to imbue private life with public priorities.

Bibliography

  • Bucher, Greta. (2000). “Struggling to Survive: Soviet Women in the Postwar Years.” Journal of Women’s History 12(1):137 – 159.
  • Field, Deborah. (1998). “Irreconcilable Differences: Divorce and Conceptions of Private Life in the Khrushchev Era.” Russian Review 57(4):599 – 613.

5. Overview of Marriage and Family Life in Russia
Answers.com—WILLIAM G. WAGNER

As elsewhere in Europe, marriage and family life in Russia have varied across time and by social group, reflecting the complex interplay of competing ideals, changing patterns of social and economic organization, differing forms of political organization and levels of state intrusiveness, and the effects of cataclysmic events. If in the long run the outcome of this interplay of forces has been a family structure and dynamic that conform essentially with those found in modern European societies, the development of marriage and the family in Russia nevertheless has followed a distinctive path. This development can be divided into three broad periods: the centuries preceding the formation of the Russian Empire during the early eighteenth century, the imperial period (1698 – 1917), and the period following the Bolshevik Revolution and establishment of the Soviet state in October 1917. While the pace of development and change varied significantly between different social groups during each of these periods, each period nonetheless was characterized by a distinctive combination of forces that shaped marital and family life and family structures. In Russia’s successive empires, moreover, important differences also often existed between the many ethno-cultural and religious groups included in these empires. The discussion that follows therefore concerns principally the Slavic Christian population.

Pre-Imperial Russia

Although only limited sources are available for the reconstruction of marital and family life in medieval Russia, especially for non-elite social groups, there appears to have been broad continuity in the structure and functioning of the family throughout the medieval and early modern periods. Family structures and interpersonal relations within marriage and the family were strongly shaped by the forms of social organization and patterns of economic activity evolved to secure survival in a harsh natural as well as political environment. Hence, constituting the primary unit of production and reproduction, and providing the main source of welfare, personal status, and identity, families in most instances were multigenerational and structured hierarchically, with authority and economic and familial roles distributed within the family on the basis of gender and seniority. While scholars disagree over whether already by 1600 the nuclear family had begun to displace the multi-generational family among the urban population, this development did not affect the patriarchal character or the social and economic functions of either marriage or the family. Reflecting and reinforcing these structures and functions, the marriage of children was arranged by senior family members, with the economic, social, and political interests of the family taking precedence over individual preference. Land and other significant assets, too, generally were considered to belong to the family as a whole, with males enjoying preferential treatment in inheritance. Marriage appears to have been universal among all social groups, with children marrying at a young age, and for married women, childbirth was frequent.

After the conversion of Grand Prince Vladimir of Kievan Rus to Christianity in 988, normative rules governing marriage and the family also were shaped and enforced by the Orthodox Church, although the effective influence of the Church spread slowly from urban to rural areas. Granted extensive jurisdiction over marital and family matters first by Kievan and then by Muscovite grand princes, the Church used its authority to establish marriage as a religious institution and to attempt to bring marital and family life into conformity with its doctrines and canons. For example, the Church sought – with varying degrees of success – to limit the formation of marriages through restrictions based on consanguinity and age, to restrict marital dissolution to the instances defined by canon law, to limit the possibility of remarriage, and to confine sexual activity to relations between spouses within marriage for the purpose of procreation. At the same time, through its teachings, canonical rules, and ecclesiastical activities, the Church reinforced the patriarchal order within marriage and the family, thereby providing a religious sanction for established social structures and practices. Hence the extent to which the Church transformed or merely reinforced existing ideals of and relationships within marriage and the family remains disputed.

Although patriarchal attitudes and structures and a gendered division of labor also prevailed within elite households, the role of family and lineage in determining relative status within and between elite groups, access to beneficial appointments and the material rewards that followed from them, and the prospects for forming advantageous marriage alliances between families imparted distinctive characteristics to elite family life, especially after the late fifteenth century. The practice among the Muscovite elite of secluding women in separate quarters (the terem), for example, which reached its greatest intensity during the seventeenth century, appears to have been due largely to the desire to protect family honor and ensure the marriage utility of daughters in a context in which the elite was growing in size and complexity. Seclusion itself, however, considerably increased the politically important role of married women in arranging and maintaining family alliances. Similarly, the development of a system of service tenements in land to support the expansion especially of military servitors after the late fifteenth century led initially to a deterioration in the property and inheritance rights of elite women. Yet such women also often had principal responsibility for managing the estates and other affairs of husbands who frequently were away on military campaigns or carrying out other service assignments. Hence within the Muscovite elite, and quite likely among other social groups in pre-Petrine Russia as well, the normative ideal and legal rules supporting the patriarchal family often concealed a more complex reality. This ideal nonetheless provided a powerful metaphor that helped to legitimize and integrate the familial, social, and political orders.

Imperial Russia

The history of marriage and the family during the imperial period was marked both by a complex pattern of continuity and change and by sharp diversity between social groups, as the exposure of different groups to the forces of change varied significantly. Nonetheless, by the early twentieth century the long-term trend across the social spectrum was toward smaller families, the displacement of the multi-generational family by the nuclear family, a higher age at the time of first marriage for both men and women, declining birth rates, an increased incidence of marital dissolution, and, in urban areas, a decline in the frequency of marriage. Within the family, the structure of patriarchal authority was eroding and the ideal itself was under attack.

The groups that were exposed earliest and most intensively to the combination of forces lying behind these trends were the nobility, state officialdom, the clergy, and a newly emergent intelligentsia and largely urban bourgeoisie. During the eighteenth century, for example, the nobility represented the main target and then chief ally of the state in its efforts to inculcate European cultural forms and modes of behavior and to promote formal education and literacy. Among the effects of such efforts was a new public role for women and the dissemination of ideals of marriage, family, and the self that eventually came to challenge the patriarchal ideal. By helping to produce by the first half of the nineteenth century a more professionalized, predominantly landless, and largely urban civil officialdom, as well as a chiefly urban cultural intelligentsia and professional bourgeoisie, changes in the terms of state service and the expansion of secondary and higher education both provided a receptive audience for new ideals of marriage and the family and eroded dependency on the extended family. By expanding the occupational opportunities not only for men but also for women outside the home, the development of trade, industry, publishing, and the professions had similar effects. Most of these new employment opportunities were concentrated in Russia’s rapidly growing cities, where material and physical as well as cultural conditions worked to alter the family’s role, structures, and demographic characteristics. For this reason, the marital and demographic behavior and family structures of urban workers also exhibited early change.

At least until after the late 1850s, by contrast, marriage and family life among the peasantry, poorer urban groups, and the merchantry displayed greater continuity with the past. This continuity resulted in large part from the strength of custom and the continued economic, social, and welfare roles of the multigenerational, patriarchal family among these social groups and, at least among the peasantry, from the operation of communal institutions and the coincident interests of family patriarchs (who dominated village assemblies), noble landowners, and the state in preserving existing family structures. Facilitated by the abolition of serfdom in 1861, however, family structures and demographic behavior even among the peasantry began slowly to change, especially outside of the more heavily agricultural central black earth region. In particular, the increased frequency of household division occurring after the emancipation contributed to a noticeable reduction in family size and a decline in the incidence of the multigenerational family by the last third of the century, although most families still passed through a cycle of growth and division that included a multigenerational stage. While marriage remained nearly universal, the age at first marriage also rose for both men and women, with the result that birth rates declined somewhat. The growth of income from local and regional wage labor, trade, and craft production and the rapid expansion of migratory labor contributed to all these trends, while also helping to weaken patriarchal structures of authority within the family, a process given further impetus by the exposure of peasants to urban culture through migratory labor, military service, and rising literacy. Although most peasant migrants to cities, especially males, retained ties with their native village and household, and consequently continued to be influenced by peasant culture, a significant number became permanent urban residents, adopting different family forms and cultural attitudes as a result. With the rapid growth of Russian cities and the transformation of the urban environment that took place after the late 1850s, family forms and demographic behavior among the poorer urban social groups and the merchantry also began to change in ways similar to other urban groups.

Normative ideals of marriage and the family likewise exhibited significant diversification and change during the imperial period, a process that accelerated after the late 1850s. If closer integration into European culture exposed Russians to a wider and shifting variety of ideals of marriage, the family, and sexual behavior, the development of a culture of literacy, journalism and a publishing industry, and an ethos of civic activism and professionalism based on faith in the rational use of specialized expertise broadened claims to the authority to define such ideals. These developments culminated in an intense public debate over reform of family law – and of the family and society through law – after the late 1850s. Very broadly, emphasizing a companionate ideal of marriage, the need to balance individual rights with collective responsibilities and limited authority within marriage and the family, and the necessity of adapting state law and religious doctrines to changing social and historical conditions, advocates of reform favored the facilitation of marital dissolution, equality between spouses in marriage, greater rights for children born out of wedlock, the recasting of inheritance rights based on sexual equality and the nuclear family, and the decriminalization of various sexual practices as well as of abortion. Many of these principles in fact were embodied in draft civil and criminal codes prepared by government reform commissions between 1883 and 1906, neither of which was adopted, and proposals to expand the grounds for divorce made by a series of committees formed within the Orthodox Church between 1906 and 1916 proved similarly unsuccessful. Socialist activists adopted an even more radical position on the reconstitution of marriage and the family, in some cases advocating the socialization of the latter. Opponents of reform, by contrast, stressed the social utility, naturalness, and divine basis of strong patriarchal authority within marriage and the family, the congruence of this family structure with Russian cultural traditions, and the role of the family in upholding the autocratic social and political orders. Although significant reforms affecting illegitimate children, inheritance rights, and marital separation were enacted in 1902, 1912, and 1914, respectively, deep divisions within and between the state, the Orthodox Church, and society ensured that reform of marriage and the family remained a contentious issue until the very end of the autocracy, and beyond.

Soviet Russia

With respect to marriage and the family, the long-term effect of the Soviet attempt to create a modern socialist society was to accelerate trends already present in the early twentieth century. Hence, by the end of the Soviet period, among all social groups family size had declined sharply and the nuclear family had become nearly universal, the birth rate had dropped significantly, marriage no longer was universal, and the incidence of marital dissolution had risen substantially. But if by the 1980s the structure and demographic characteristics of the Russian family had come essentially to resemble those found in contemporary European societies, the process of development was shaped by the distinctive political and economic structures and policies of Soviet-style socialism.

Soviet policies with respect to marriage and the family were shaped initially by a combination of radical ideological beliefs and political considerations. Hence, in a series of decrees and other enactments promulgated between October 1917 and 1920, the new Soviet government introduced formal sexual equality in marriage, established divorce on demand, secularized marriage, drastically curtailed inheritance and recast inheritance rights on the basis of sexual equality and the nuclear family, and legalized abortion. The party-state leadership also proclaimed the long-term goal of the socialization of the family through the development of an extensive network of social services and communal dining. These measures in part reflected an ideological commitment to both the liberation of women and the creation of a socialist society. But they also were motivated by the political goals of attracting the support of women for the new regime and of undermining the sources of opposition to it believed to lie in patriarchal family structures and attitudes and in marriage as a religious institution. In practice, however, the policies added to the problems of family instability, homelessness, and child abandonment caused mainly by the harsh and disruptive effects of several years of war, revolution, civil war, and famine. For this reason, while welcomed by radical activists and some parts of the population, Soviet policies with respect to marriage and the family also provoked considerable opposition, especially among women and the peasantry, who for overlapping but also somewhat different reasons saw in these policies a threat to their security and self-identity during a period of severe dislocation. In important respects, Soviet propaganda and policies in fact reinforced the self-image that partly underlay the opposition of women to its policies by stressing the ideal and duties of motherhood. Yet the direction of Soviet policies remained consistent through the 1920s, albeit not without controversy and dissent even within the party, with these policies being embodied in the family codes of 1922 and 1926.

The severe social disruptions, strain on resources, and deterioration of already limited social services caused by the collectivization of agriculture, the rapid development of industry, the abolition of private trade, and the reconstruction of the economy between the late 1920s and the outbreak of war in 1941, however, led to a fundamental shift in Soviet policies with respect to marriage and the family. With its priorities now being economic growth and social stabilization, the Soviet state idealized the socialist family (which in essence closely resembled the family ideal of pre-revolutionary liberal and feminist reformers), which was proclaimed to be part of the essential foundation of a socialist society. A series of laws and new codes enacted between 1936 and 1944 therefore attempted both to strengthen marriage and the family and to encourage women to give birth more frequently: Divorce was severely restricted, children born out-of-wedlock were deprived of any rights with respect to their father, thus reestablishing illegitimacy of birth, abortion was outlawed, and a schedule of rewards for mothers who bore additional children was established. Although the goals of women’s liberation and sexual equality remained official policy, they were redefined to accommodate a married woman’s dual burden of employment outside the home and primary responsibility for domestic work. Economic necessity in fact compelled most women to enter the workforce, regardless of their marital status, with only the wives of the party-state elite being able to choose not to do so. Despite the changes in normative ideals and the law, however, the effects of Soviet social and economic policies in general and of the difficult material conditions resulting from them were a further reduction in average family size and decline in the birth rate and the disruption especially of peasant households, as family members were arrested, migrated to cities in massive numbers, or died as a result of persecution or famine. The huge losses sustained by the Soviet population during World War II gave further impetus to these trends and, by creating a significant imbalance between men and women in the marriage-age population, considerably reduced the rate of marriage and complicated the formation of families for several decades after the war.

The relaxation of political controls on the discussion of public policy by relevant specialists after the death of Josef Stalin in 1953 contributed to another shift in Soviet policies toward marriage and the family during the mid-1960s. Divorce again became more accessible, fathers could be required to provide financial support for their children born out-of-wedlock, and abortion was re-legalized and, given the scarcity of reliable alternatives, quickly became the most common form of birth control practiced by Russian women. Partly as a result of these measures, the divorce rate within the Russian population rose steadily after the mid-1960s, with more than 40 percent of all marriages ending in divorce by the 1980s, and the birth rate continued to decline. But these trends also gained impetus from the growth of the percentage of the Russian population, women as well as men, receiving secondary and tertiary education, from the nearly universal participation of women in the workforce, from the continued shift of the population from the countryside to cities (the Russian population became predominantly urban only after the late 1950s), and from the limited availability of adequate housing and social services in a context in which women continued to bear the chief responsibilities for child-rearing and domestic work. These latter problems contributed to the reemergence in the urban population of a modified form of the multigenerational family, as the practices of a young couple living with the parents of one partner while waiting for their own apartment and of a single parent living especially with his or usually her mother appear to have increased. In the countryside, the improvement in the living conditions of the rural population following Stalin’s death, their inclusion in the social welfare system, yet the continued out-migration especially of young males seeking a better life in the city also led to a decline in family size, as well as to a disproportionately female and aging population, which affected both the structure of rural families and the rate of their formation. Nonetheless, the ideals of the nuclear family, marriage, and natural motherhood remained firmly in place, both in official policy and among the population.

Bibliography

  • Clements, Barbara Evans; Engel, Barbara Alpern; and Worobec, Christine D., eds. (1991). Russia’s Women: Accommodation, Resistance, Transformation. Berkeley: University of California Press.
  • Engel, Barbara Alpern. (1994). Between the Fields and the City: Women, Work, and Family in Russia, 1861 – 1914. New York: Cambridge University Press.
  • Freeze, ChaeRan Y. (2002). Jewish Marriage and Divorce in Imperial Russia. Hanover, NH: Brandeis University Press.
  • Goldman, Wendy Z. (1993). Women, the State, and Revolution: Soviet Family Policy and Social Life, 1917 – 1936. New York: Cambridge University Press.
  • Hubbs, Joanna. (1988). Mother Russia: The Feminine Myth in Russian Culture. Bloomington: Indiana University Press.
  • Lapidus, Gail Warshofsky. (1978). Women in Soviet Society: Equality, Development, and Social Change. Berkeley: University of California Press.
  • Levin, Eve. (1989). Sex and Society in the World of the Orthodox Slavs, 900 – 1700. Ithaca, NY: Cornell University Press.
  • Marrese, Michelle Lamarche. (2002). A Woman’s Kingdom. Noblewomen and the Control of Property in Russia, 1700 – 1861. Ithaca, NY: Cornell University Press.
  • Mironov, Boris N., with Eklof, Ben. (2000). The Social History of Imperial Russia, 1700-1917. 2 vols. Boulder, CO: Westview Press.
  • Pouncy, Carolyn J., ed. and tr. (1994). The “Domostroi”: Rules for Russian Households in the Time of Ivan the Terrible. Ithaca, NY: Cornell University Press.
  • Ransel, David L., ed. (1978). The Family in Imperial Russia: New Lines of Historical Research. Urbana: University of Illinois Press.
  • Ransel, David L. (2000). Village Mothers: Three Generations of Change in Russia and Tataria. Bloomington: Indiana University Press.
  • Schlesinger, Rudolf, comp. (1949). Changing Attitudes in Soviet Russia: The Family in the USSR. London: Routledge and Paul.
  • Wagner, William G. (1994). Marriage, Property, and Law in Late Imperial Russia. Oxford: Clarendon Press.
  • Worobec, Christine D. (1991). Peasant Russia: Family and Community in the Post-Emancipation Period. Princeton, NJ: Princeton University Press.

6. Soviet Russian Abortion Policy
Answers.com—SHARON A. KOWALSKY

The Soviet Union was the first country in the world to legalize abortion, but its goal was to protect women’s health and promote motherhood, not to advance women’s rights.

Abortion was a criminal offense punishable by exile or long prison sentences before the Bolshevik Revolution. As part of its effort to reform Russian society, the Soviet government legalized abortion in a decree issued November 18, 1920. Supporters of the decree believed legal abortions were a necessary evil to prevent women from turning to dangerous and unsanitary back-alley abortions. Their goal was not to protect a woman’s individual reproductive rights, but to preserve the health of the mother for the common good. Furthermore, the legalization only applied to abortions performed by trained medical personnel, and in 1924 a system was established that prioritized access to legal abortions according to class position and social vulnerability (unemployed and unmarried working women topped the list).

In 1936, the state recriminalized abortion in an attempt to increase the birth rate and to emphasize the value of motherhood. Although the policy shift temporarily reduced the number of abortions, in the long-term repression failed to have the desired effect and abortion rates increased. Abortion was again legalized in 1955 on the premise that women had become sufficiently aware of the importance of their maternal roles. Despite the changes over time, Soviet abortion policy consistently focused on protecting women’s health and encouraging motherhood. A lack of alternative methods of contraception, however, ensured that Soviet women relied on abortion as their primary means to control reproduction throughout the Soviet period.

Bibliography

  • Buckley, Mary. (1989). Women and Ideology in the Soviet Union. Ann Arbor: University of Michigan Press.
  • Goldman, Wendy Z. (1993). Women, the State, and Revolution: Soviet Family Policy and Social Life, 1917 – 1936. Cambridge, UK: Cambridge University Press.

Gender Bias and Family Law : Where are we ? (2000)

By Gene C. Colman

This paper was presented by Gene C. Colman to the Federation of Law Societies National Family Law Program 2000 held in St. John’s Newfoundland, July 2000.

PART 1: INTRODUCTION

Gender bias does exist in Canada’s family courts. Is this state of affairs healthy for litigants, lawyers, judges and the justice system generally? I submit “not”. As lawyers, do we approach our cases in a truly objective manner free from prejudice and stereotype? Do judges actually decide cases based upon the law and upon the admissible evidence, free from prejudice and stereotypical assumptions? Or, are we all manifestly influenced by our upbringing, by our education and simply by our ‘gut’ feelings? How carefully and how objectively do we really assess the tragedy of each individual marital separation and divorce matter that comes our way?

This writer suggests that it is high time that we lawyers and judges undertake some very serious soul searching. We have failed our constituency – the parents and children who turn to us for “justice”. This writer will admit that “justice” for the “winner” is not necessarily “justice” for the “loser”. We surely cannot please all the people all of the time. However, the manner in which we approach our cases, the manner in which we filter the facts of the case, the manner in which we apply the statute law and the case law, the manner in which we deal with the participants on a simply human level – these are all tasks that we must approach in a truly objective, balanced, even-handed and most of all, courteous, manner. If we do fulfill this mandate, our consumers (the families in the throes of separation and divorce) will come to perceive that family law lawyers and family law judges indeed do give every individual, do give every family, fair and impartial consideration. If we do fulfill our mandate, then there need not be “winners” and “losers”. Unfortunately, we have failed miserably to fulfill our mandate. We have alienated. We have been harsh and rude in our dealings with counsel and their clients. We have made unwarranted and unjustified assumptions based upon irrelevant personal characteristics of the other party and we have not hesitated to repeat those untruths in letters, affidavits, and elsewhere. As judges, we have been quick to condemn one side or the other without truly empathizing with the pain and concerns of the litigants and without making any real attempt to appreciate the often desperate situation of the party upon whom we foist most of the financial responsibilities. In short, we lawyers and judges have exacerbated the conflict and we must shoulder a good portion of the blame.

How have we allowed ourselves to become so ‘divorced’ from the concerns, the fears, and the angst of those whom we are supposed to faithfully serve? There is a preponderance of evidence which strongly suggests that rather than approach cases from an objective launching pad, we allow ourselves to be significantly influenced, nay swayed, by what is politically correct, by what appears to be popular at any moment in time. In short, we sadly do not do what we should be doing. We tend to ignore or minimize the actual ‘facts on the ground’. We make assessments and decisions based upon prejudice and stereotypes. In doing this, we lawyers and judges are prone to bring the administration of justice into disrepute. We lawyers and judges are promoting a high degree of alienation amongst substantial sectors of our population. Surely we have not done so intentionally! Most family law lawyers and family law judges do want to do what is right and just. Most of us truly want to help families resolve their difficulties as quickly as possible. Nonetheless, we have allowed ourselves to be led astray. We have to reform the manner in which we resolve family law cases. We have to critically examine our prejudices, our biases, our political correctness. We have to recognize that “gender bias” exists and then we have to move forward from that point to sensitively address the needs of all of our consumers be they men, women or children.

PART 2: DEFINITION The New Collins Concise English Dictionary, 1982 defines “bias” as follows:

1. mental tendency or inclination, exp. Irrational preference or prejudice.”

Another definition, from that same dictionary, cites a meaning within statistics. The dictionary reads:

5. Statistics. A latent influence that disturbs an analysis.”

The New Collins Thesaurus [1984] gives the following synonyms for “bias”:

n. 1. Bent, bigotry, favourtism, inclination, intolerance, leaning, narrow-mindedness, one-sidedness, partiality, penchant, predilection, predisposition, prejudice, proclivity, proneness, propensity, tendency, turn, unfairness. 2. Angle, cross, diagonal line, slant ~ v. 3. Distort, influence, predispose, prejudice, slant, sway, twist, warp, weight.

Emotional Overtones: It is clear, I would suggest, that the emotional overtones of the word, “bias”, evoke a visceral, gut reaction to the effect that “bias” is hardly a praiseworthy quality. When we accuse a legal system, a judge or a lawyer of being “gender biased”, then this can be interpreted as an attack, an insult. This writer does not intend it to be taken that way. We are all prone to interpreting events, to interpreting evidence, through the prisms of our own education and experience (legal and otherwise) and to view the world and ascribe motives and behaviours in a way that accords with our preconceptions. While this is only human, it is not necessarily a fair and equitable manner of presenting and deciding family law cases. We must strive to do better!

Gender Initiatives Review: The Women Lawyers Association of New South Wales presented a Discussion Paper for the New South Wales Courts’ Gender Initiatives Review. This paper correctly states:

Each person’s background, experiences and views influence how they see the world and approach issues and other people. This same paper, quoting from Prof. Kathleen E. Mahoney, notes that gender bias in the legal system can be an unconscious as opposed to a deliberate attempt to undermine the fairness of the system:

Gender bias is acknowledged to be a systemic form of discrimination – that is, a pattern of conduct – arising from social and cultural assumptions about the roles and expected behaviour of men and women. Gender bias can arise both as a predisposition or a pre-judgement. Most gender bias in the legal system is unconscious, based upon attitudes and stereotypes rather than deliberate decisions. Proving this attitudinal bias is difficult and hard to prevent and correct. Biased attitudes affecting individual cases can then affect the development of law and the treatment of women in society at large.

This author would support Prof. Mahoney’s analysis but only up to the last sentence, if Prof. Mahoney means to imply that gender bias can, by definition, operate only against the interests of women. Gender bias can, and does, operate against both genders.

Prof. Mahoney continues her analysis but again, this writer parts company with her if she means to imply that only women can be the subject of gender bias. Her analysis as to the dynamic of gender bias is one that this writer supports, provided we recognize that both women and men can face gender discrimination and bias.

Gender bias takes many forms. One form is behaviour or decision-making by participants in the justice system which is based on, or reveals reliance on, stereotypical attitudes about the nature and roles of men and women or of their relative worth, rather than being based upon an independent valuation of individual ability, life experience and aspirations. Gender bias can also arise out of myths and misconceptions about the social and economic realities encountered by both sexes. It exists when issues are viewed only from the male perspective, when problems of women are trivialised or over-simplified, when women are not taken seriously or given the same credibility as men. Gender bias is reflected not only in actions of individuals, but also in cultural traditions and in institutional practices.

Author’s Definition: I therefore define gender bias in the context of our legal system as follows:

“Gender Bias” is the tendency to interpret the actual facts of the case through a prism of favourtism to one gender over the other where such favourtism is based upon prejudice, stereotyping, distortion and irrational preference.

Our Challenge: The challenge for truly dedicated jurists and lawyers is to overcome the past and to look forward in a way that leaves open all possibilities – to judge fairly and impartially based upon the actual facts of the individual case.

This writer adopts the words of Vancouver lawyer, Carey Linde :

A committee of parliamentarians concerned about fairness in custody and access issues has to realize that the gender neutral divorce laws are not the problem. The problem is with the “judicially assumed presumptions” that govern the day to day determinations of the best interest of the child test in our lower courts. These “presumptions” typically have never been put to the test of evidence, but spring from and are maintained out of gender biases still ingrained in the system.

PART 3: HISTORICAL BACKGROUND

Patriarchal Society: Family Law used to be within the bailiwick of men. Women were not permitted to vote. Women were not even “persons” at law until well into the 20th century. Women were clearly disadvantaged in contemporary terms. Historically, we lived in a patriarchal society, ruled by men. Men made the laws; men applied the laws.

In family law, the father as of right was the one who was granted custody and guardianship of his children. It was not until 1839 in England that the statutory authority was granted to the courts that even enabled mothers to obtain custody – and then only if the children were under seven years of age and if the mother had not committed adultery. Most Canadian provinces enacted legislation similar to the 1839 British statute. Only in the most exceptional of circumstances were mothers granted custody under such a regime. It was only in 1886 that mothers officially obtained rights equal to those of fathers in regard to court ordered custody. From approximately the 1920’s until the present time, the courts have tended to leave children, especially of so-called “tender years”, in the care of the mother. The foregoing brief history is but a reflection of the social times. Women were largely at the mercy of men. There was a social perception that men knew what was best. It would only logically follow that there was a strong presumption, as reflected in statute and case law of the time, that child custody cases were decided in favour of men. This state of affairs had absolutely nothing to do with what may have been best for any individual child. It had everything to do with what was “politically correct” at the time. Our society and hence our legal system was riddled with gender bias against women.

Feminist legal analysis: It is understandable (and desirable) that the liberation movements of the 60’s led to the feminist legal analysis of the 70’s and to the present time. This is a normal and healthy reaction to the historical dominance of men in western society. Unfortunately, this analysis, like all sociological critique and discourse, tends to generalize. Furthermore, this discourse tends to have a socio-political agenda. Whether we are considering ‘female’ agendas or ‘male’ agendas, special interest agendas that seek to disadvantage one group have no place in our family law system. Our family law legal system should be the epitome of even handedness and fairness. Certainly no woman should face any form of gender bias within the system; neither should any man have to overcome stereotypical assumptions of judges and lawyers.

Don’t ignore true facts: When we decide cases about the future responsibilities and rights of the disintegrating family, we cannot and should not ignore the true facts of the individual situations. Bias, stereotypical assumptions, and shoot from the hip assessments of what role this particular dad or this particular mom played during the marriage and after separation – all have no place within an enlightened, impartial and truly fair/unbiased system of family law justice.

PART 4: STEREOTYPICAL ATTITUDES

Stereotypical attitudes permeate society and quite naturally and as an extension of that, they permeate the attitudes of lawyers and by judges. Men’s groups tend to argue that the system is stacked against them because they are perceived in a certain fashion, regardless of the facts of their individual cases.

Just as many men argue that gender bias permeates the system as against them, so too do many commentators lament the insensitivity to the predicament of women in the family law system. These commentators emphasize there is a very real issue of physical and other forms of abuse by men against women and children. Illustrative of this position are two articles in volume 14 – 1 (1997) of the Canadian Journal of Family Law:

Firstly, Dr. P. Susan Penfold, Clinical Director of the Child Psychiatry Inpatient Unit at the British Columbia Children’s Hospital, argues that there are six commonly held assumptions with respect to child sexual abuse allegations that arise during custody disputes. Referring to a number of other studies, Dr. Penfold cautions that these assumptions have little validity. Dr. Penfold observes that part of the problem here is that our system is riddled with gender bias against women. Quoting from the B.C. Law Society Gender Bias Committee, she writes:

Over the past few years, various federal and provincial committees and task forces have studied gender equality in the justice system. The Report of the Law Society of B. C. Gender Bias Committee concludes, “gender inequality is pervasive in the legal and justice systems of this province. While we are satisfied that there are examples of gender bias against men, the vast majority of concerns raised reflect discrimination against women.” Family law is noted to present “the most difficult and complex issues of gender bias…All of us hold preconceived and possibly stereotypical notions about family law matters because of our personal life experiences.” Women often have multiple additional obstacles to confront, including poverty, naivete about institutional structures and practices, and the disadvantages of having to rely on legal aid lawyers.

Dr. Penfold appears to conclude that this gender bias and stereotyping are factors in society tending to doubt the veracity of women’s allegations of child sexual abuse against men. Unfortunately, Dr. Penfold herself stereotypes women (see the above quotation) as poor, uninformed, and less competently represented because women have to rely upon legal aid lawyers.

The second article in that same issue of the Canadian Journal of Family Law decries the insensitivity of judges to the issue of male violence when it comes to making decisions with respect to custody and access. Melanie Rosnes’ methodology was to review the content of the reported child custody and access cases in the Reports of Family Law from April 1992 to April 1994. Of those, she found sixteen cases of alleged violence; the mother usually received custody but the father usually obtained unsupervised access. Ms. Rosnes assumes that the historical subjugation of women by men serves to influence judges to be insensitive, to say the least, when it comes to dealing with male violence. Rosnes appears to assume that all men are violent. The opening sentence of her article makes this clear: “The subject of how male violence affects women and children in the context of child custody and access is a relatively neglected topic in Canadian academic literature.” Rosnes cites other studies herself to present proof of various stereotypes, which this writer suggests places men in general in a very poor light:

Ideologies perpetuating the subordination of women are reproduced through the gender neutral discourse of family law, in particular the best interests of the child principle. (at p. 35)

The ideology of equality in family law, or the principle that both parents are equal, creates the illusion of fairness and equity, while ignoring the differences between men’s and women’s everyday lives, and the fact that in most cases it is women who do the day to day work of caring for children. (at p. 35)

In addition to the ideology of equality, the ideology of fatherhood, that is that children need fathers in order to have a stable and fulfilling childhood, now pervades society. (at p. 35)

Familial ideology then, which includes the idea that the heterosexual nuclear family is a warm, safe, and natural institution, permeates both society and family law. (at p. 37)

Ideas about the family mask its inequality, its violence, and exclude families and individuals who do not conform to the ideal. (at p. 37)

Patriarchal beliefs, or the idea that men are superior and have the right to dominate and control women and children, also pervade law and society. (at p. 38)

At one point in history a husband was allowed to beat his wife as long as the object used was no thicker than his thumb, hence the rule of thumb. (at p. 38) [See below with respect to the myth inherent in this statement.]

Rather than acknowledging the historical roots of male violence, and the structural conditions that perpetuate it, medical, legal and helping profession discourses pathologize family violence, and end up blaming woman for her own abuse.

Rosnes examines in some detail a selection of the sixteen cases and criticizes them thoroughly. Her conclusions emphasize her distinctly ideological position with respect to generalized behaviours and roles of women and men and the effect that societal perception of those roles may have on judicial decision making:

Familial ideologies, which emphasize romantic love and marriage, traditional gender socialization, and the heterosexual nuclear family as the foundation of society, infiltrate all institutional structures. As well, patriarchal attitudes, the concept of women as property, and the hierarchical nature of the family, all contribute to the normalization of male violence in the home.

Ideologies of the family, then, are legitimized by established legislation, and male violence, which has very real consequences for women, children and society, is ignored, minimized, normalized and perpetuated in family law.

These two articles, like many others that permeate the academic literature, start from the premise that most (if not all) men are violent, that we still live in a patriarchal society, and that judges are influenced by these unwritten norms. The inevitable result is that women cannot and do not receive fair treatment in the family courts of Canada. The argument is made that it is women who are victimized in heterosexual marriage and it is women who suffer yet further victimization in the family courts. All of this, we are told, is on account of gender bias.

These authors are complaining of gender bias that permeates the system. They do not want cases decided based upon false stereotypes of idealized dads, misconceptions of the historical role of women in the family and idealized perceptions of what a “family” should be. Rather, they would prefer that cases be decided on the basis of another set us stereotypes: that men are violent by nature, that most if not all men exercise some sort of violent control over women, that men have not played and therefore do not play significant roles in the rearing of children, and that children would not really miss their fathers in any event.

There are other commentators who take a more sympathetic attitude to the plight of men who seek to maintain and even expand relationships with their children upon separation and divorce. They approach the legal system with a degree of trepidation that equals if not surpasses the feminist suspicion of our family courts. They criticize the assumptions, presumptions, and biases that they say men face in the family courts.

Myth:

One of the most pervasive myths of family law, here and in the U.S.A., has been perpetrated by sociologist, Lenore Weitzman. She has reported that women suffered a 73% drop in their standard of living following divorce while men experienced a 42% increase in theirs. [Lenore Weitzman: The Divorce Revolution, 1985] This study has been cited favourably in a number of Canadian cases in numerous American cases as well as in President Clinton’s 1996 budget. “Weitzman’s figures have been cited by policy-makers and others as hard evidence of what’s become known as the ‘feminization of poverty’”.

Contra:

For years, like many others, this writer accepted the Weitzman study as ‘truth’. But then I started to think about my own twenty-one years’ experience as a family law lawyer. I tried to recall those situations where the man improved his economic position post separation and divorce while the woman’s economic situation declined. I could think of precious few cases that fit the Weitzman model. In fact, I could think of none. Virtually all the cases I have seen witness the standards of living of both sides going down. For most of us, it is a struggle to maintain mortgage payments, debt payments and other responsibilities. When you add separation and divorce into the mix, the same money has to provide for two households rather than one. Both sides are often faced with significant legal bills, other additional debt, and increased stress that naturally affects work performance. Common sense tells us that everyone’s standard of living suffers. My own personal experiences certainly do not constitute scientific analysis. However, there has been ample criticism of Weitzman in the literature:

The problem was that Weitzman’s numbers were woefully inaccurate, a conclusion shared by independent researchers, feminist researchers, and, eventually even Weitzman herself.

Two social scientists whose methodology Weitzman had used, attempted to duplicate Weitzman’s results using their own data. Those social scientists found that “post-divorce women suffered a much smaller and temporary decline in their standard of living of 30%. The two also found that divorced women’s standards of living actually rose within five years to figure higher than that obtained while married to their former husbands.” The two had tried to obtain Weitzman’s raw data but she had held back on that for four years. When she did finally release her data, the figures were “disorganized and unreviewable”. The U.S. Census Bureau acknowledged that the Weitzman percentages were in error and eventually, Weitzman herself acknowledged that “her study was erroneous”.

Susan Faludi highlights many reasons to suspect Weitzman’s data and conclusions:

1. For at least six years, Weitzman avoided releasing her data.

2. The authors of the methodology used by Weitzman could not gain her cooperation for release of her data and they found that Weitzman’s own published data was not consistent with her conclusions.

3. The U.S. Census Bureau in 1991 supported the conclusions of the above two researchers, which therefore cast doubt upon Weitzman’s conclusions.

4. Weitzman’s sample size was a mere 114 divorced women and men and her response rate was very low.

5. The sample was restricted to Los Angeles County.

6. Weitzman’s sole data source was the memory of the women interviewed.

7. Weitzman had no comparable data on those divorced prior to the no-fault divorce laws of 1970.

8. A 1990 study by two law professors found that women and children were slightly better off under the no-fault law.

Sanford Braver’s book, Divorced Dads: Shattering the Myths, demonstrates that much of the research on the topic subsequent to Weitzman’s fails to consider the U.S. Tax Code which, like our own, favours the single custodial parent. Like our own Child Support Guidelines, this research also fails to consider the non-custodial father’s spending on the children. After making these adjustments, Braver tells us that the economic effects of divorce are similar for both genders; mothers might even have a slight advantage.

Canadian Study with Empirical Data: The Federal Government commissioned studies prior to the drafting and ultimate implementation of the Federal Child Support Guidelines. One such study is dated 1995 and is entitled: “An Overview of the Research Program to develop a Canadian Child Support Formula”. The researchers used empirical data gathered from fifteen court districts across Canada over a three-month period during 1991. They readily admitted the possible frailties of their data, but ultimately concluded that the “empirical analysis based on this database to be original, useful and worthwhile”. They divided the families into three subsections: low income – less than $15,000 annually; medium income – $15,001 to $30,000; high income – greater than $30,000.00. There was a rather startling result when one considers the conventional wisdom à la Weitzman et al: “In most cases, the standard of living of both parties declined as a result of the separation.” We are dealing here with a sample of 869 cases. Other findings of note:

· “In general, when both parents were in a low income category ($15,000 or less) and there was only one child, the custodial parent had a higher standard of living after taxes. … If there were two children, the parents had similar standards of living, and if there were three or more children, the non-custodial parent had the higher standard of living after taxes and payment of awards.”

· “[W]hen the non-custodial parent has a low income, the average decrease in his or her income-to-needs ratio is further than the custodial parent.”

· The authors analyze further the situation where both parents are in the low income category. They find that prior to separation, the family can manage – average household income is found to be 17% higher than needs as defined by the “low income measure” that we are now familiar with from the household standards of living test. After separation, however, “the loss of economies of scale at marriage breakdown reduces standards of living for both households; on average, the custodial household has an income-to-needs ratio of 0.88, and the non-custodial household is even worse off at 0.83.”

· The study did reveal that where the non-custodial parent was in the high-income category, they did “enjoy very high standards of living relative to their ex-spouses and children”.

Recall that the data was gathered in 1991. We are now nine years later and under the regime of the Guidelines across Canada. Child support awards are now higher relative to the non-custodial parent’s income, there is no tax treatment to child support, and spousal support awards tend to be higher and for longer periods of time. To what extent, and especially in the case of low-income non-custodial parents, do we actually experience the “feminization of poverty” as decried by Lenore Weitzman?

But popular myths do not die easily. One Canadian court acknowledged that the Weitzman work was flawed, but it still accepted her analysis:

I am aware the Weitzman study has been criticized, and that further research has been done which supports the conclusion that the impact of divorce upon women is not statistically greater five years after divorce than the impact on women of the general conditions of the work force. (Faludi, Susan: “Backlash: The Undeclared War Against American Women”, Anchor Books, Doubleday, 1991.) However, the Supreme Court of Canada in Moge (supra) did not rely solely on the Weitzman study to conclude that divorce support awards were impoverishing women and allowing men to become richer.

Myth:

The best interests of a child normally lie with the “primary caretaker” to whom custody should normally be awarded.

Contra:

No empirical evidence supports the distinction between primary and secondary caretaker after age five, as children’s greatly increased social, cognitive, and emotional maturity creates changes in the meaning of attachments and parent-child relationships to the child. (According to Carey Linde, data in the above paper suggests that there is no distinction between primary and secondary caretaker even before the age of five.) Myth:

Women suffer a legislative and practical disadvantage in Canada’s family courts.

Contra:

While divorce represents a loss that deprives fathers of an attachment figure and a role or identity, it also constitutes a situation where fathers are judicially and legislatively disadvantaged on the basis of gender.

Myth:

Men are not usually as capable of being custodial parents as are mothers.

Contra:

Fathers who have sole custody echo the complaints of mothers with sole custody. They feel overburdened, just as the mothers do, but the evidence indicates contrary to the stereotype that divorced men can rear and nurture their children competently and are equally capable of managing the responsibilities of custody, with the possible exception that the fathers have been found more effective when it comes to matters like discipline, enforcing limits, and that’s particularly with boys. Park and Sawin found that fathers fed their babies as effectively and efficiently as did their spouses. They solved their feeding problems, burped and stroked, awakened and soothed appropriately and, most important, got as much milk into their babies in the allotted time as did their spouses. This rather surprising finding held true whether or not the fathers had extensive experience with babies before their own were born. Clear support cannot be found for the belief that fathers do not have the same sensitivity as mothers do, nor the belief that fathers do not have the capacity to assume the day-to-day responsibility for child care. On the contrary, studies show that fathers can be just as sensitive and competent in care-giving as mothers. In one group of studies, researchers have compared the psychological and physiological responses of mothers and fathers to infant smiles and cries (Frodi & Lamb, 1978; see also Berman, 1980). Findings show that when given this opportunity and encouragement, fathers are just as sensitive and responsive to infants as mothers are. In another group of studies (See Parke, 1979) mothers and fathers were observed interacting with their newborn babies in the first few days after birth. During this observational session, fathers were found to be just as involved with and nurturant towards their infants (e.g., in touching, looking at, kissing, talking to). Also, fathers were found to be just as competent at feeding. They were equally likely to be able to detect infant cues, e.g., sucking, burping, and coughing, and were just as successful, as measured by the amount of milk consumed by the infant.

The major finding of the study was that across a variety of assessments of psychological well-being (self-esteem, anxiety, depression, problem behaviors), children (especially boys) did significantly better in the custody of their fathers. Moreover, children in father custody had the advantage of maintaining a more positive relationship with the nonresidential parent – the mother.

Myth:

Mothers have closer bonds with children, particularly those of tender years. Children do not bond to fathers as closely as they do to their mothers.

The rule that children of tender years belong with their mother has been considered by the courts as a rule of human sense or common sense rather than a rule of law. It is only one factor to be considered with all the circumstances.

Contra:

Numerous studies have established beyond a doubt that infants form close attachment bonds with their fathers and that this occurs at the same time that they form attachments to their mothers. Although father and mother usually play different roles in their child’s life, “different” does not mean more or less important.

. . . a warm, involved, caring father does militate against antisocial behavior, and an inadequate father does increase the probability of delinquency. As in the case of intellectual development and social development, a father can be a predominantly positive or negative influence with regard to his children’s moral development. And this runs counter to our cultural prejudice, which consistently devalues the father’s contribution to his children’s psychological development. . . . for the better part of this century, our society and it’s institutions have overlooked all but the father’s economic contribution to his children.

. . . stereotypes about the nature of men, women, and children have dictated custody decisions throughout history. In earlier times, it was assumed that men, by nature, are better suited to protect and provide for children. Since 1920, it has been assumed that women, by nature, are better suited to love and care for children. . . . As guidelines for custody dispositions, folklore, sentiment, and stereotypes are poor substitutes for factual information.

Myth:

Upon family breakup, young children will miss their mother more than their father and therefore, young children should stay with their mother.

Contra:

Many studies show that children show no particular preference for or problem with either parent staying or leaving.

Children in stress or not in stress showed no apparent preference for either parent.

There was no difference in protest following maternal or paternal departures.

Little difference was found between infant attachment to mom or dad.

Myth:

We all agree unequivocally that access denials form a miniscule part of our practices.

Contra:

40% of the custodial wives reported that they had refused to let their ex-husband see the children at least once, and admitted that their reasons had nothing to do with the children’s wishes or the children’s safety but were somehow punitive in nature.

42% of children said their mothers tried to prevent them from seeing their fathers after divorce – 16% said their fathers tried to prevent them seeing their mothers.

In response to the myth expounded above, the writer responded as follows:

On the contrary, I maintain that the problem of access denial is much more widespread than it should be or my colleagues in the Family Law Section apparently believe it to be. Liberal M.P. Roger Gallaway, the chair of the Joint Committee, was quoted in the May 10 Sunday Sun as having received a submission from the Ottawa-Carleton C.A.S. to the effect that of the 900 complaints received which involved custody – access cases, 600 were shown to be unfounded or unsubstantiated. A 1991 article in the American Journal of Orthopsychiatry reported that in a survey of 220 divorcing couples, non-custodial parents reported significantly more visits with their children, as well as significantly more denial of visitation by their ex-spouses, than did custodial parents.

While I agree that more empirical studies would be helpful, in the meantime there are a significant number of Canadian non-custodial parents who are labouring against a ‘stacked deck’; legislation is required now to better foster and encourage contact between children and both their parents. Unreasonable denial of access, false claims of abuse, and other tactics which deprive children of a separated/divorced parent, are significant and tragic problems that call out not only for social solutions (as correctly advocated by the C.B.A. committee), but for effective legislative remedies as well.

Myth:

The phrase, “rule of thumb” comes down to us from the age of patriarchy, when husbands were allowed to beat their wives, as long as the stick were no thicker than a man’s thumb.

Contra:

According to etymologist Robert Claiborne, writing in Red Herrings and Loose Cannons, a Book of Lost Metaphors, the phrase actually derives from the age-old practice of carpenters who would use the fact that the width of the male adult thumb is approximately one inch; these workmen would then use their thumbs as substitutes for rules (rulers); alternatively, early brewmasters checked the temperature of their vats with their thumbs. So, any simple procedure yielding approximate results came to be known as a “rule of thumb.”

Myth:

Male violence is not treated seriously by the courts in Canada.

Contra:

Ontario Superior Court Justice, Mary Lou Benotto, wrote the following in 1995:

Domestic abuse is abhorrent. I have never found a judicial officer who treated physical cruelty with anything but the seriousness it deserves. However, the term ”abuse” has been diluted beyond all proportion. There is scarcely a separated spouse who does not believe that he or she was in an abusive relationship. Abuse is a powerful term. But it is routinely used to describe shouting, badgering, voice raising, walking away when angry. Think for a minute about your private relationship. So as not to raise a bald allegation, the particulars given of the marital discord become very detailed.

Examine the facts. Keep an open mind: No matter what perspective from which one approaches family law matters, and in particular custody and access issues, it should become readily apparent that there are conflicting studies with respect to the roles of women and the roles of men. Judges should not assume anything about anyone simply because of gender. What is all important are the actual facts of any particular case. The same applies to lawyers who are interviewing clients and then negotiating on behalf of the clients. We should not assume anything simply because a client happens to be a father, or a mother. We must be keenly aware that we are influenced by many factors that profoundly influence us on both the conscious and on the subconscious level. Accordingly, we all have to be especially vigilant to keep an open mind.

PART 5: PERCEPTIONS OF GENDER BIAS

Is there a perception ‘out there’ that men cannot be dealt with equitably and fairly by the courts simply because they are men?

Prof. Robert Martin comments in Law Times ( April 10, 2000, p. 8 ) that much of public policy appears to respond to hysteria. So called “deadbeat dads” are a prime example of a group that is not given a fair shake. Martin concludes that: “…the courts, just like any other institution, seem to get caught up in each wave of hysteria.”

The editor of Money and Family Law, Lorne Wolfson, writes in The Lawyers Weekly (January 14, 2000):

If the development of Canadian family law is seen as a struggle between the rights and obligations of husbands and those of wives, the past few years have seen few victories for husbands. In the view of many family law practitioners, these days are bad for husbands.

Prof. James G. McLeod writes in a recent Reports of Family Law Annotation: “…it is not a good time to be a payor in family law cases.” In a 1997 annotation, Prof. McLeod writes:

If anyone needed proof that it is a bad time to be a husband or to represent a husband in family law proceedings, the Ontario Court of Appeal reasons in Munro v. Munro should provide that proof. While many wives received an inadequate share of family resources in the past, this is no longer the case. The extension of matrimonial property legislation to include pensions and business assets, the enactment of the Federal Child Support Guidelines and the increase in spousal support ensure that as a general rule a dependent spouse receives a fair share of the family resources. It is submitted that in Munro v. Munro the Ontario Court of Appeal went beyond ensuring that the wife received a fair share of the family resources. The husband was ordered to pay spousal support to a wife whose job and economic development were unaffected by the marriage, with the result that she had more income than he.

In Munro v. Munro, the Court of Appeal awarded support to a wife, notwithstanding the fact that there is no indication in the reasons that her role in the marriage caused her any economic disadvantage or provided any economic advantage to the husband. If the Court of Appeal is correct in its conclusion, entitlement to support is not an issue any longer. Every spouse who earns less than his or her partner for any reason is entitled to support. The only issues are form, duration and quantum of support.

It would appear that Prof. McLeod is commenting somewhat ‘tongue in cheek’. One would be hard pressed to find reported cases where a wife is ordered to pay spousal support to a husband simply because the wife earned more than the husband. The problems addressed by Prof. McLeod received ‘lighter’ treatment at the pen of lawyer-humourist, Marcel Strigberger. In a satirical piece (see the article attached to this paper) originally published in Law Times, Strigberger ‘reproduces’ a judgment where a very short term live-in partner succeeds in obtaining a share of her lover’s property and a substantial amount of spousal support in excess of the fellow’s gross income. We chuckle when we read the outrageous facts and the even more outrageous summaries of the legal positions spouted, but we all know that within the satire lies a very significant grain of truth.

In the newsletter published by the Ontario Family law Section of the Canadian Bar Association, Toronto family law lawyer, Joanne Stewart, recently published an entertaining and enlightening stream of consciousness article on spousal support. Ms. Stewart examines the former emphasis on the “clean break” and acknowledges that in bygone days we tended to over emphasize that aspect of spousal support. Now, she says, “I think we’ve gone too far again.” She continues:

We need to look at the family dynamic that confronts us and balance the equities so at the end of the day, everybody has a life and everybody can reasonably live with the life he/she had ended up with. … One needs incentive to get out of bed in the morning and work, work, work.

In spousal support, as in life, one cannot have it all. One needs to reset one’s expectations, with compromise and balance as key determiners.

Bluntly, I think we’re doing it wrong again. We’ve got the pendulum stuck at the high end of the swing and we have to get it back to the middle. The high end does the families we try to serve a disservice because long term it creates trouble.

Ms. Stewart does not characterize the pendulum shift in family law as a result of gender bias. However, she correctly pinpoints (in this writer’s view) the perceived unfairness of the current system in the eyes of many men. Men are doing much worse in the family courts of Canada. Women are doing much better. Often, the distinguishing factor in the cases appears to be gender.

National Post columnist, Donna Laframboise, has written extensively on the plight of men who face gender discrimination in the legal system. From examinations of domestic assault to the role of women’s shelters in providing slanted evidence in family court and their role in stereotyping all men, to suicide by men in despair who have been crushed by the courts, to the issue of supporting adult children, to examining the myth of the “deadbeat dad”, to men who are battered by their wives, and much more – Ms. Laframboise has highlighted many of the perceived problems in the system.

Canadian Senator Anne Cools has been a very outspoken critic of the gender bias that men face within our legal system. The senator has been concerned with lawyers who inflame the atmosphere by helping their clients to hurl false allegations of abuse at the other party. She has reintroduced a bill in the Senate that would make it a criminal offence for a lawyer to knowingly deceive a tribunal or to rely on false, deceptive, exaggerated or inflammatory documents (this includes affidavits and pleadings). In her speech to the Senate on February 17, 2000, the Senator described the many false allegations of child abuse that men are often faced with. She cites nearly 50 reported Canadian judgments where a judge has said that the allegations were false – most of them against men. In a recent Senate speech, Senator Cools criticizes the Child Support Guidelines for the way they disregard the custodial parent’s income and how the Guidelines have “abandoned the objects of fairness and child-centredness.” Senator Cools uses harsh words to describe the effect of the Guidelines:

The evidence indicates that the child support guidelines were never about the best interests of children but were instead about a transfer of wealth from support-paying parents, mostly fathers, to support-receiving parents, mostly mothers, under the guise of child support.

The child support guidelines used a design model intended to punish support-paying parents and intended to drive non-custodial parents, mostly fathers, out of their children’s lives, and reinforced the fracturing of relationships between children and parents in divorce.

The child support guidelines were bad economics, bad public policy and bad family law. That a purely feminist ideological theory on economic relations between men and women should be constructed into regulations under the Divorce Act, under the guise and title of child support, is a serious matter and deserves study.

A search on the Internet will reveal multitudinous examples of groups and individuals in Canada, the U.S. and elsewhere who feel that the legal system discriminates against them simply because of gender. Men and women alike share this perception but obviously from different vantagepoints. (This is not to say that the debate divides strictly along gender lines as one can find numerous women who support the view that men are discriminated against, and vice versa.) The fervour with which they express their views is testament to the strongly held views of both sides.

A Canadian site called, “Shared Parenting Forum”, is full of material that bemoans the lack of equality experienced by men in the judicial system. One part of that web site is specifically dedicated to “Gender Bias”. A recent review showed 62 separate entries, many with sub-entries. This is only one very small segment of the material that is available. There is a very strong perception on the net and in a wide body of literature that the system is stacked against men.

There is a wide spread perception that men are stereotyped, that they do face discrimination and bias within the family law system. There is a feeling that attitudes need to be changed and some would maintain that even legislation has to be changed.

PART 6: CASE LAW EXAMPLES OF GENDER BIAS

Child Support Guidelines: Gender sometimes appears to be the distinguishing factor in similar cases under the Child Support Guidelines. Unusually high expenses to exercise access to a child, can be a factor to find “undue hardship”. In one case, spending 10% of the non-custodial father’s income of $43,000.00 to exercise access was found not to constitute undue hardship. However, in another case, only 5.6% of the non-custodial mother’s annual income of $64,000.00 was held to qualify her to make a successful undue hardship argument.

In Petrocco v. Von Michalofski, the NCP mother had employment income of $27,650.00. The table amount would have been $516.00. This was contrasted with the father’s income of $90,000.00 (and the court noted his second wife’s income of $207,000.00). While the judge (Métivier, J.) did admit that the income discrepancy “alone does not necessarily constitute a hardship to the person with the lower income” (at paragraph 19), a reading of the entire decision cannot help but leave one with the impression that it did have a significant influence. The undue hardship claim was allowed and the mother was required to pay only $150.00 per month. The trial judge noted [paragraph 20] that the mother had been “financially denuded as a result of the separation and the breakdown of her health.” This could apply to many NCP fathers. If the genders had been reversed, it is doubtful that a male NCP would have been treated as compassionately.

Contrast Petrocco with Pilotte v. Pilotte where Little Prov. J. considers a case of joint custody with each parent retaining primary residence for one child. Father, whose income was $72,000.00, was paying spousal support of $8,769 to mother who had an income of $37,508.00 plus the spousal support. Father argued that requiring him to pay child support to the mother would work an undue hardship upon both him and upon the daughter who primarily resided with him. Judge Little finds such arguments to be without merit. These are the same sort of arguments that the non-custodial mother successfully used in Petrocco.

Non-custodial and split custody mothers appear to do better than non-custodial fathers. In Martin v. Gerard,, Justice Kozak allowed the NCP mother with less than one half the income of the father to pay absolutely no child support instead of the Guideline table amount of $379.00 per month. Contrast Martin v. Gerard with Paul v. Pisio, where the father, having an income of almost $40,000.00, argued two points in support of his undue hardship claim. Firstly, he would have to incur travel costs of $600 per year to exercise access. Secondly, he had a legal duty to support his new wife, his new son and his stepdaughter. The father ‘s claim was turned town on all accounts.

In the split custody case of Scharf v. Scharf, the mother improved her position to the detriment of the father. This father enjoyed only marginally more income than the mother. In MacLeod v. Druhan, Gass, J.F.C. similarly demonstrated compassion for a split custody mother who, on an application of the table amounts, would have received from the father $146.00 monthly. Instead, the judge ordered the father to pay $236.00. The basis for this decision was that “the amounts in the table do constitute undue hardship for the mother and daughter in her care.”

Not all NCP fathers are turned down, however. See Baryani v. Longe, where the NCP father had income of only $1,330.00 per month. The father argued that in order to have the children with him on access, he would have to have decent accommodation. Therefore, he could not afford the table amount of $236.00 for two children. The judge accepted this argument and reduced monthly support to $50.00 per month.

In Camirand v. Beaulne, Justice Aitken considered the situation of a NCP father who was obligated to support his child from a second marriage. The father’s income was $64,773, which translated into a standard table amount for three children of $1,145.00 per month. He had leased a car so that he could travel to see his children and to travel some distance to attend their hockey games. In responding to the father’s undue hardship claim, the judge answered that these debts were “not unusually high, nor are they the only way in which he can facilitate access to his children” (paragraph 43). Justice Aitken finds that the father will suffer hardship but that such hardship would not be “undue”. In what appears to be a slight castigation of the father for having more kids and trying to get on with his life, the judge states as follows (paragraph 44):

Knowing he had three children to support, he made the decision to have a fourth. He also made the decision to purchase a home, instead of choosing less expensive accommodation. His new spouse is choosing to work on a part-time basis to be available for their child. None of these steps were mandatory steps in the sense that they were beyond the Respondent’s control. It is perfectly understandable why the Respondent would want to do everything he has done; however, these choices carry costs. It is not for the Applicant to forego the child support Parliament has determined she is entitled to receive for the support of the three Beaulne children in order to help the Respondent support his youngest child and enable his second spouse to work on only a part-time basis.

What this case appears to say is that it is against public policy to procreate after you have already had children with your first spouse. The case appears to state that children of the first marriage take precedence before children of the second marriage. Furthermore, Justice Aitken accurately quoted other cases where a very stringent view was taken as to under what circumstances an undue hardship application could be entertained. However, in a case that this justice decided only one month later, the learned justice appeared to change her tune. Here the judge was compassionately addressing the predicament of a non-custodial mother who had just given birth to twins with her current partner. Accordingly, her income had decreased to maternity leave benefits, and her partner earned a modest income of $32,450.00. Justice Aitken contrasted this state of affairs with the custodial father who was had just moved to California where he earned $70,000.00 U.S. The judge finds that total income levels are higher in the custodial father’s household (and the judge does not use the household standards of living test found in the Schedule) and then she baldly states as follows:

[para10] Considering Ms. McColl’s responsibilities to provide support for three children in addition to Katie, I find that it would create undue hardship for her to pay child support to Mr. Hughes on behalf of Katie at this time. It is preferable if she could use the funds she otherwise would provide to Mr. Hughes pursuant to the Table amount under the Guideline to facilitate her keeping in contact with Katie and to facilitate Katie having a continuing relationship with Ms. McColl’s other children.

The reasoning in the second case is entirely inconsistent with the judge’s ruling in the first case. The key distinguishing factor is the gender of the custodial and non-custodial parent. This same judge would not allow a male non-custodial parent any relief in another earlier decision even though that parent also had a child from another relationship, access costs to visit with that child, and another child imminently due with his current spouse. Gender clearly plays a key role in determining the result.

This writer has no difficulty with judges showing compassion to a NCP mother and her three children with her second spouse. Indeed, this writer fully endorses the court’s compassionate approach. On the other hand, please consider this: Ask yourself how many cases you have read about, experienced yourself, or have seen gone down while you wait in motions court, where men similarly situated have their undue hardship claims dismissed summarily.

A careful reading of section 14 of the Guidelines would appear to indicate that the mere coming into force of the new child support scheme would be sufficient to ground an application to vary child support. It should not matter whether that variation would yield a higher or lower number. Section 14 states:

Circumstances for variation — For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances:

(a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof;

(b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and

(c) in the case of an order made before May 1, 1997, the coming into force of section 15.1 of the Act, enacted by section 2 of chapter 1 of the Statutes of Canada, (1997).

Subsection 17(4) of the Divorce Act states:

Factors for child support order — Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.

The Saskatchewan Court of Appeal had no problem with reading these provisions according to their plain meaning. Other courts have gone through amazing machinations to come to the conclusion that section 14 ( c ) of the Guidelines does not mean what it clearly says. Indeed, one Ontario judge had a very difficult time reading any sense into precedent but in the end, she felt bound by the doctrine of stare decisis to follow the lead of the province’s appeal court. The Guidelines were supposed to bring predictability and uniformity to child support. One is left with the impression that these goals apply only when the custodial mother seeks to raise the amount of child support on the basis that May 1, 1997 has come and gone. When the NCP father seeks to lower the amount of child support, relying on the same grounds, then all of the sudden section 14 ( c ) does not really say what the plain language says it says. It is difficult to find any logical reason for courts to destroy the legislative scheme as they have done. One is inextricably led to the sad conclusion that courts will apply the standard table amounts where the custodial parent will receive more money but not apply the standard table where this would yield lower net amounts of child support.

Spousal support and property: It is not only Guidelines cases that evidence gender bias. Spousal support and property cases sometimes also appear to reflect a degree of gender bias. Prof. James McLeod writes:

After an initial flurry, courts don’t seem to feel the need to justify their decisions by reference to Bracklow v. Bracklow (1999) 44 R.F.L. (4th) 1 (S.C.C.). Take Court v. Cudmore, [2000 CarswellPEI 41 (P.E.I. T.D.)] where DesRoches, J. held that a husband wasn’t entitled to support because he couldn’t prove he suffered any economic disadvantage from the roles adopted in marriage. No talk of Bracklow or dependency or contractual support. Could it be that husbands don’t have the same support entitlement as other spouses?

The wife was awarded an unequal division of property [in Court v. Cudmore] because the husband didn’t pull his weight. No abdication mind you. Just not pulling his weight. You won’t find many cases to support this interpretation of the Family Law Act in Ontario or P.E.I. (we have essentially the same Act). Or do husband’s have different property rights as well as different support rights?

Had time permitted, this writer would have liked to explore in this paper the development of the law of spousal support over the last twenty years in Canada. We would perceive that there have been significant changes and that men, except for a very brief period in the late 80’s and very early 90’s, have not faired too well. Especially where one combines child support with spousal support, I dare say that courts by and large have given quite short shrift to the man’s ability to pay while still providing for himself and for the children when they are with him. In addition, by legislative design, the courts must ignore the NCP’s direct expenditures on his children. Nothing is budgeted for that category. The end result in many cases has been that divorced men have become significantly more impoverished than divorced women.

Should we lawyers and judges quietly accept the current situation where advice giving and decision making reflects a significant degree of gender bias? Is there judicial authority that tells us this is not acceptable in Canada? Let us proceed to the next section of this paper to examine such issues.

PART 7: JUDICIAL ADMONITIONS AGAINST GENDER BIAS AND STEREOTYPING

Judges: Some judges in family law cases have cautioned us against permitting stereotypical attitudes to overly influence our attitudes and judicial decision making. The division of opinion between the majority and the minority in the Alberta appellate decision of Roebuck v. Roebuck highlights the tensions between the competing approaches. Justice Kerans, for the majority, rejects the “tender years principle” as being any sort of decisive factor. Justice Kerans supported the trial judge who stated at paragraph 46:

There is no longer, in my view, any historic or traditional right that favours either mother or father. This issue must be decided on the merits of this case.

Commenting on this principle, Justice Kerans stated at paragraph 49:

Should a pre-school child be with the mother? Spence J. (dissenting) in Talsky describes the answer “yes” as “common sense”. Often, when we invoke common sense, we intend to invoke unstated conventional assumptions. As Einstein rather provocatively said, “common sense is the collection of prejudices acquired by age 18”. I suppose that there is no harm in this unless the unstated conventions come to be doubted. That the female human has some intrinsic capacity, not shared by the male, to deal effectively with infant children is an assumption that was once conventionally accepted but is now not only doubted but widely rejected.

Justice Kerans than referred to the famous “frills and flounces” quote of Justice Roach as follows:

As recently as 1955, this rhapsodic commentary by Roach J.A. in the 1955 case of Bell v. Bell, [1955] O.W.N. 341 at 344 (C.A.), attracted no adverse comment:

No father, no matter how well-intentioned or how solicitous for the welfare of such a child, can take the full place of the mother. Instinctively, a little child, particularly a little girl, turns to her mother in her troubles, her doubts, and her fears. In that respect, nature seems to assert itself. The feminine touch means so much to a little girl; the frills and flounces and the ribbons in the matter of dress; the whispered consultations and confidences on matters which to the child’s mind should only be discussed with Mother; the tender care, the soothing voice; all these things have a tremendous effect on the emotions of the child. This is nothing new; it is as old as human nature …

Justice Kerans criticized this approach at paragraphs 51 and 52:

This view confuses cultural traditions with human nature; it also traps women in a social role not necessarily of their choosing, while at the same time freeing men: if only a mother can nurture a child of tender years, then it is the clear duty of the mother to do so; because the father cannot do it, he is neither obliged nor entitled even to try. Also, it is seen by some as self-perpetuating: by putting the female child in the custody of somebody who accepts the maternal role model so described, the rule ordains that she will have just such a role model at close hand during her most impressionable years. Thus, the “tender years principle”, which at first glance seems only innocently sentimental, is seen by many as part of a subtle, systemic sexual subordination.

In my view, it is no part of the law of Canada that a judge is bound to say that human nature dictates that only females can perform that parental role labelled as “maternal”. I do not agree with Roach J.A.; I do not agree with the appellant-mother.

On the contrary, the minority opinion of Justice McGillivray also quotes Bell v. Bell (but approvingly) as well as more recent cases that adopted the “tender years principle”. His Lordship concluded (at paragraph 22) that: “He [the trial judge] should have recognized the wife’s advantage as a mother in relation to a child of tender years.”

Justice Kerans rejects this genderist approach in place of a sensible view that emphasizes the needs of the individual child and the relative abilities of each parent to meet those needs. He states at paragraphs 55-56:

In what might be called the supra-modern marriage, strenuous efforts are made to avoid any role distinction based upon sex. The many tasks of homemaking and child-rearing — indeed, child-bearing — are shared as completely as possible, and not on any gender basis. It follows, of course, that both fathers and mothers must, if this model is to work, acquire the skills and make the commitment which is required for effective parenting.

Taken in this context, the remarks made by judges in the past about “tender years principle” do not come to much. All that can be said in this age of changing attitudes is that judges must decide each case on its own merits, with due regard to the capacities and attitudes of each parent. We should take care not to assign to this idea or that (all actually of recent origin and unique to our society) the august status of being the only one consistent with human nature or common sense. And we must continue to recognize that the attitude toward child-rearing of the parties to the marriage which the judge is being asked to dissolve could reflect traditional, modern or supra-modern ideals or, more likely, some confused and contradictory spot on the spectrum between these extremes. For example, there is no point giving a father the custody of a child of tender years if that father believes child-rearing to be “women’s work”. That would not be in the best interests of the child. And we must remember that our role is not to reform society; our role is to make the best of a bad deal for the child who comes before us for help.

Prof. James McLeod writes in a case commentary on the case of Bendle v. Bendle:

Rules of “common sense” should not propogate or continue social expectations in parents and others that one parent, in today’s society, may be seen or assumed to have a greater involvement in the children’s lives or be better able to provide for the children.

In the accompanying case, Justice Vogelsang quoted extensively from Roebuck, supra, but did not explicitly adopt the approach of Justice Kerans. Justice Vogelsang did, however judge the case on its own merits, free from prejudice and stereotype when he stated:

Although provocative and carrying some persuasive authority, I am not bound, in my view, by this decision of an appellate court of another province. I do not wish, in this case, to adopt completely the view of the Alberta Court of Appeal with respect to the tender years doctrine. Nevertheless, the case before me is a clear example of reversal of our traditional views of parental relationships and roles, the applicant father now capably and fully responding to the needs of his daughters.

This reluctance to adopt stereotypical gender views was followed in part in Tyabji v. Sandana :

Stereotypical gender views have no place in an award of custody. Some of the evidence showed that one of the interim orders for custody in this matter was intemperately criticized by one witness based upon an entrenched view of gender rights. That showed a misunderstanding of the principles of law which govern matters of custody. Custody will not be awarded on the basis of any preconceived idea about daughters being with mothers and sons with fathers, or about age-appropriate placements, or about the rights of working parents of either sex not to be deprived of custody simply because they have a particular career path. In every case the court must determine the best interests of the children and all else must give way to that. I refer to Williams v. Williams (1989), 24 R.F.L. (3d) 86 (B.C. C.A.), and to R. v. R. (1983), 34 R.F.L. (2d) 277 (Alta. C.A.). However, I am alive to the common sense suggestion that, often, small children will have formed a stronger emotional and physical bond with their mother. That must be weighed against any evidence which shows otherwise in a particular case, and against any evidence which shows that in spite of that bond at one stage of the children’s lives, as strong a bond has since formed with the other parent, or that the probable futures of the parents puts one, rather than the other, in a position better to serve the best interests of the children from the time of the trial onwards.

In Tyabji, Justice Spencer would not go so far as to entirely negate “the common sense suggestion that, often, small children will have formed a stronger emotional and physical bond with their mother”, but the learned Justice did clearly judge this case on its own merits. He reviewed the evidence and examined carefully the plans of each parent for the children. Weighing all the factors of the particular case before the court, a decision was made to entrust the three children to the custody of their father.

Justice Pardu in a 1994 decision, analyzed whether or not there was a presumption (read “bias”) in Canadian family law in favour of the mother. Quoting from the 1993 Supreme Court of Canada decision in Young v. Young, Justice Pardu concluded that there was no such presumption:

Gender

117 Counsel on behalf of the mother argues that little girls belong with their mothers and thus squarely raises the issue of whether or not there is a gender based preference to give custody of young female children or young children generally to female parents.

118 In the past a presumption of maternal preference has been expressed in cases such as Talsky v. Talsky [1976] 2 S.C.R.

119 As indicated by McLachlin, J. in Young v. Young, [1993] 8 W.W.R. 513 at 527,

This presumption, like the paternal preference rule, was justified on pragmatic grounds; the welfare of the child was the often cited reason for the presumption. So justified, the presumption carried the seeds of its own demise. Courts increasingly looked behind the preference to focus directly upon what was in the child’s best interest, which was sometimes found to conflict with a maternal preference.

In S. v. S., 35 R.F.L. (3d) 400 at 406 Houlden, J.A. indicated at page 406,

The ‘tender years doctrine’ is a principle of common sense; it is not a rule of law or a legal presumption.

It was made clear by Grandpre, J. in Talsky v. Talsky (supra) that the paramount consideration in custody matters is the welfare of the child.

120 The tender years doctrine has its origins in the years when the dominant social pattern was for males to be breadwinners and females to be homemakers. As was indicated by both Drs. Graham and Caplan, historically the dominant social pattern was for young girls to take their identity from their mother. This was so in large part because in the past, the substantial role foreseen for young girls was that of a homemaker as well. Living with a homemaker mother prepared a young girl for the role she would play as an adult.

121 L’Heureux-Dubé, J. said in Young v. Young, supra, at page 561,

As has been widely observed by those studying the nature and sources of changes in family institutions, popular notions of parenthood and parenting roles have undergone a profound evolution both in Canada and elsewhere in the world in recent years…

One of the central tenets of this new vision is that child care both is no longer and should no longer be exclusively or primarily the preserve of women. Society has largely moved away from the assumptions embodied in the tender years doctrine that women are inherently imbued with characteristics which render them better custodial parent. Moreover, both economic necessity and the movement toward social and economic equality for women have resulted in an increase in the number of women in the paid work force. Many people have tended to assume that a natural result of this change would be the concurrent sharing of household and childcare responsibilities with spouses, companions, and of course fathers. In addition, the increased emphasis on the participation of fathers in the raising of children and financial support after divorce gave rise to claims by fathers and fathers’ rights groups for legislative changes that would entitle them to the benefit of neutral presumptions in custody decisions.

and

The custody provisions of the Act [the Divorce Act] reflect to some degree, this evolving view of parental roles. Under the best interests test, courts no longer automatically grant custody according to the tender years doctrine. Instead, decisions are made according to the best interests of the child without the benefit of a presumption in favour of the mother, or for that matter, the father.

This philosophy is reflected in the provisions of the Children’s Law Reform Act, R.S.O. 1990. c.C.12,

24.- (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child.

(2) In determining the best interests of a child for the purposes of an application under this Part in respect of custody of or access to a child, a court shall consider all the needs and circumstances of the child including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the care and upbringing of the child;

(b) the views and preferences of the child, where such views and preferences can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) any plans proposed for the care and upbringing of the child;

(f) the permanence and stability of the family unit with which it is proposed that the child will live; and

(g) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

(3) The past conduct of a person is not relevant to a determination of an application under this Part in respect of custody of or access to a child unless the conduct is relevant to the ability of the person to act as a parent of a child. 1982, c.20, s.1, part.

I do not view the decision of S. v. S., 35 R.F.L. (3d) 400 (Ont. C.A.) as supporting the proposition that a gender based preference continues to exist in Ontario. In that case it was found that the trial judge misapprehended the evidence of an expert, and this misinterpretation created an erroneous negative prognosis of harm to the child if she continued in her mother’s care. The mother had had interim custody of the child from separation in 1987 to the trial in 1990. Houlden, J. said at page 406,

Under the tender years doctrine, in order for a court to deprive the mother of a young child of custody, where the child has been in the mother’s care and custody, there must be very compelling reasons.

Rather than constituting a gender based preference, the court was concerned about continuity in the child’s care. The child was healthy, emotionally and socially secure and there was no serious evidence the mother was harmful to the child. The court referred to the evidence of Dr. Young, a psychologist,

If a child is doing reasonably well in a reasonably good environment, when we look at making changes, changing the status quo, change in itself may create some problems and we’re not sure that the alternative, again, I’m a psychologist not a crystal ball gazer, is necessarily going to substantially improve the child’s situation. So generally speaking, I would recommend against changing the custodial situation of a child unless there is clear evidence that the change would yield significant benefit to the child.

I conclude that there is no gender based presumption in custody matters. The focus is on the best interests of the child.

Madam Justice Huddart of the British Columbia Court of Appeal similarly cautioned against using presumptions in family law. She stated:

It is now clear that legal and factual presumptions have no place in an enquiry into the best interests of a child, however much predictive value they may have. The Supreme Court of Canada has stated absolutely clearly that such presumptions detract from the individual justice to which every child is entitled.

In that same case, Justice Huddart cautioned that we should employ a fact based and individualized approach to the resolution of child custody matters:

26 In a country where there is no common parenting philosophy it may not be surprising that the legislatures have chosen to mandate individual enquiries into the individual child’s best interests, rather than to impose a community view of parenting by laying down stricter guidelines for the exercise of a court’s authority to decide what is in a child’s best interests when parents cannot. The analysis of the child’s needs and resources will be contained by the particular child’s extended family and community.

27 Any thought that an enquiry into a child’s best interests is to be “undertaken with a mindset that defaults in favour of a preordained outcome absent persuasion to the contrary” was dispelled in Gordon, supra at 58. Writing for the majority, McLachlin J. emphasized the individual nature of every enquiry at 58:

But Parliament did not entrust the court with the best interests of most children; it entrusted the court with the best interests of the particular child whose custody arrangements fall to be determined. Each child is unique, as is its relationship with parents, siblings, friends and community. Any rule of law which diminishes the capacity of the court to safeguard the best interests of each child is inconsistent with the requirement of the Divorce Act for a contextually sensitive inquiry into the needs, means, condition and other circumstances of “the child” whose best interests the court is charged with determining. “[G]eneral rules that do not admit of frequent exceptions can[not] evenly and fairly accommodate all of the varying circumstances that can present themselves”: per Morden A.J.C.O. in Carter v. Brooks, supra, at p.51. The inquiry is an individual one. Every child is entitled to the judge’s decision on what is in its best interests; to the extent that presumptions in favour of one parent or the other predetermine this inquiry, they should be rejected. “No matter what test or axiom one adopts from the many and varied reported decisions on this subject, each case must, in the final analysis, fall to be determined on its particular facts and, on those facts, in which way are the best interests of the children met”: Appleby v. Appleby, supra, at p.315.

Non family law cases: In areas of the law other than “family”, some judges have likewise cautioned us against permitting stereotypical attitudes to influence our attitudes and judicial decision making. For example, should injured females receive less compensation than injured men in personal injury actions because historically women have earned less than men? Should we apply statistics that reinforce gender stereotypes and thus diminish damages for all females, regardless of their personal characteristics, abilities and foregone employment prospects for the future? In one noteworthy case, Justice Cecelia Johnstone decided that a determination of a school girl’s future lost income claim should not be prejudiced by using statistical yardsticks that reinforced lower wages for women versus men. Justice Johnstone stated (writer’s emphasis):

[para469] It is entirely inappropriate that any assessment I make continues to reflect historic wage inequities. I cannot agree more with Chief Justice McEachern of the British Columbia Court of Appeal in Tucker, supra, that the courts must ensure as much as possible that the appropriate weight be given to societal trends in the labour market in order that the future loss of income properly reflects future circumstances. Where we differ is that I will not sanction the “reality” of pay inequity. The societal trend is and must embrace pay equity given our fundamental right to equality which is entrenched in the constitution. The courts have judicially recognized in tort law the historical discriminatory wage practices between males and females. The courts have endeavoured to alleviate this discrimination with the use of male or female wage tables modified by either negative or positive contingencies. However, I am of the view that these approaches merely mask the problem: how can the Court embrace pay inequity between males and females? I cannot apply a flawed process which perpetuates a discriminatory practice. The application of the contingencies, although in several cases reduce the wage gap, still sanction the disparity.

[para470] A growing understanding of the extent of discriminatory wage practices and the effect of this societal inequity must lead the Court to retire an antiquated or limited judicial yardstick and embrace a more realistic, expansive measurement legally grounded in equality. Equality is now a fundamental constitutional value in Canadian society. As Chief Justice Dixon (as he then was) has noted in Canada Safeway v. Brooks, [1989] 1 S.C.R. 129, there have been profound changes in women’s labour force participation. Since Brooks there has been even greater accommodation of the parental needs of working women. The Court cannot sanction future forecasting if it perpetuates the historic wage disparity between men and women. Accordingly, if there is a disparity between the male and female statistics in the employment category I have determined for the Plaintiff the male statistics shall be used, subject to the relevant contingencies. Once again if the contingencies are gender specific, then the contingencies applicable to males shall be used except in the case of life expectancy, for obvious reasons.

Justice Johnstone justifiably jettisons discriminatory broad-based stereotypes with respect to women’s position in the labour market. Just because old statistical projections said that women historically earned less than men, this is not sufficient justification, in an era of pay equity and Charter equality, to award a woman less for the future wage loss component of her personal injury damages. Justice Johnstone is quite correctly telling us that outmoded societal biases with respect to women’s wages are inconsistent with equality before the law. Her Honour states: “I cannot apply a flawed process which perpetuates a discriminatory practice.The application of the contingencies, although in several cases reduce the wage gap, still sanction the disparity.

[para470] A growing understanding of the extent of discriminatory wage practices and the effect of this societal inequity must lead the Court to retire an antiquated or limited judicial yardstick and embrace a more realistic, expansive measurement legally grounded in equality. Equality is now a fundamental constitutional value in Canadian society. As Chief Justice Dixon (as he then was) has noted in Canada Safeway v. Brooks, [1989] 1 S.C.R. 129, there have been profound changes in women’s labour force participation. Since Brooks there has been even greater accommodation of the parental needs of working women. The Court cannot sanction future forecasting if it perpetuates the historic wage disparity between men and women. Accordingly, if there is a disparity between the male and female statistics in the employment category I have determined for the Plaintiff the male statistics shall be used, subject to the relevant contingencies. Once again if the contingencies are gender specific, then the contingencies applicable to males shall be used except in the case of life expectancy, for obvious reasons.

Justice Johnstone justifiably jettisons discriminatory broad-based stereotypes with respect to women’s position in the labour market. Just because old statistical projections said that women historically earned less than men, this is not sufficient justification, in an era of pay equity and Charter equality, to award a woman less for the future wage loss component of her personal injury damages. Justice Johnstone is quite correctly telling us that outmoded societal biases with respect to women’s wages are inconsistent with equality before the law. Her Honour states: “I cannot apply a flawed process which perpetuates a discriminatory practice.

Justice Johnstone states: “… there have been profound changes in women’s labour force participation. Since Brooks there has been even greater accommodation of the parental needs of working women. The Court cannot sanction future forecasting if it perpetuates the historic wage disparity between men and women.” “Profound changes in women’s labour force participation” – There have indeed been societal changes in the way women work in society, in their opportunities for advancement, in the level of their wages. Perpetuation of stereotypes has no place in assessment of future wage loss for personal injuries. Perpetuation of stereotypes has no place in determination of family law issues.

In the area of wrongful dismissal law, the Ontario Court of Appeal rightfully admonished a trial judge who failed to realize that males and females should be treated equally. The trial judge had awarded $120,000.00 to an autoworker – supervisor for wrongful dismissal. The plaintiff (a GM supervisor) had sexually harassed a number of his female workers and was, I would submit, quite properly terminated. The appellate court sensibly rejected the plaintiff’s “rough environment” argument: The supervisor had argued that the GM plant is a rough place where rough language and sexually suggestive banter is common place. Justice Carthy felt that the trial judge’s reasons demonstrated “a complete lack of appreciation of the modern concept of equality of the sexes.” The Court of Appeal tells us here that you cannot engage in workplace sexual innuendo with subordinate workers. In other words, the Ontario Court of Appeal is striking a needed blow in favour of gender equality.

The cases tell us that the workplace must not be a source of any kind of gender discrimination; sexual harassment is a particularly invidious expression of discrimination and it will not be countenanced under any circumstances.

The outlooks expressed by Justices Johnstone and Carthy make eminently good sense. Their reasons are consistent with the Charter and they probably strike a responsive cord amongst most lawyers and judges.

Our highest court had occasion not to long ago to enter into the debate over gender stereotyping. In R. v. Ewanchuk, the Supreme Court of Canada had occasion to review Alberta Court of Appeal Justice McClung’s stereotypical notions of a woman’s responsibility for allegedly inviting sexual assault. Justice McClung’s views were those that might have been thought or expressed in a bygone era. Briefly, the Supreme Court of Canada was hearing an appeal of a sexual assault acquittal in the Alberta trial court that was upheld by the Alberta Court of Appeal. The legal issue in the case appeared to be whether or not the complainant had consented, as consent is understood by the Criminal Code. (Justice L’Heureux-Dubé did not characterize the issue that way. See below.) The Supreme Court of Canada convicted the accused. Where the case becomes interesting for those concerned with gender bias and stereotyping is the additional judgment proffered by Madam Justice L’Heureux-Dubé. Madam Justice L’Heureux-Dubé states [at para 82]:

This case is not about consent, since none was given. It is about myths and stereotypes…”

The judge then goes on to quote an author who summarizes the various myths of rape (although this case was not a rape case). She criticized McClung, J. for his references to the complainant’s manner of dress and her living arrangements with her boyfriend and others. Madam Justice L’Heureux-Dubé then stated [at para 89]:

These comments made by an appellate judge help reinforce the myth that under such circumstances, either the complainant is less worthy of belief, she invited the sexual assault, or her sexual experience signals probable consent to further sexual activity.

Reference was also made to various other comments by Justice McClung that provoked harsh criticism from Justice L’Heureux-Dubé. Justice L’Heureux-Dubé demolished each of the gender stereotypes expressed by the Alberta justice. She states [at para 95]:

Complainants should be able to rely on a system free from myths and stereotypes, and on a judiciary whose impartiality is not compromised by these biased assumptions. The Code was amended in 1983 and in 1992 to eradicate reliance on those assumptions; they should not be permitted to resurface through stereotypes reflected in the reasons of the majority of the Court of Appeal. It is part of the role of this Court to denounce this kind of language, unfortunately still used today, which not only perpetuates archaic myths and stereotypes about the nature of sexual assaults but also ignores the law. Madam Justice McLachlin wrote a brief concurring opinion. She stated [at para 103]: I also agree with Justice L’Heureux-Dubé that stereotypical assumptions lie at the heart of what went wrong in this case. … On appeal, the idea also surfaced that if a woman is not modestly dressed, she is deemed to consent. Such stereotypical assumptions find their roots in many cultures, including our own. They no longer, however, find a place in Canadian law.

Justice Minister Anne McLellan was reported [National Post, 26 February 1999] to have praised the court for “eradicating stereotypes … that may give women pause in how they think they will be understood by the courts of this country.”

Just as the courts have stridently denounced gender bias in non family law areas, so too should the family courts eschew any suggestion of gender bias in their decision making processes.

PART 8: CONCLUSIONS

Despite the various admonitions in both family and non family law cases against falling into the trap of stereotyping the litigants, there is nonetheless a fairly widely held belief that in family law matters, men are not dealt with absent any gender bias. The Supreme Court justices have repeatedly attacked stereotypical assumptions. We are told that eradicating stereotypes is an important task to accomplish. This writer agrees! Let us eradicate all stereotypes! Can any evenhanded and open-minded jurist in this country argue that these principles should apply only to sexual assault cases? Can anyone seriously maintain that Justice L’Heureux-Dubé’s admonitions with respect to gender stereotyping can apply only to women but not to men? Should not these just principles be applied across the board? And should not such across the board application include family law? Are we only going to judge ‘on the evidence’ free from stereotypes when it comes to sexual assault, but when we talk of the importance of having fathers intimately involved in their children’s lives shall we permit “myths and stereotypes” to defeat a father’s claim to parent his children in a normal fashion?

“Complainants should be able to rely on a system free from myths and stereotypes, and on a judiciary whose impartiality is not compromised by these biased assumptions.” – Should this judicial pronouncement pertain only to rape and sexual assault? Should it be permissible to assume the worst of men simply because they are men?

There is sufficient judicial authority, in both the family law sector and elsewhere, that should require courts to jettison once and for all the skewered methodology of assuming parenting abilities based upon mere gender. An individual parent’s ability to meet the individual needs of a particular child depends on a very wide variety of factors. That there is a commonly held perception that men as a class do not have a hope of succeeding speaks loudly to the perceived injustice in our judicial system. We lawyers and judges can do much to bring a sense of fairness into the system. However, in order to succeed in this task, we will be required to critically examine and hopefully discard our prejudices, stereotypical assumptions and ingrained biases.

In the area of child support, spousal support and property division – should not the law be applied in a gender-neutral fashion? When the law is not being thus applied, it behooves the court to clearly articulate what factors have led to a certain conclusion. Historically, women have suffered wage discrimination in the workplace. Many women have indeed assumed the bulk of childcare responsibilities during the marriage and have consequently suffered economic prejudice when attempting to reintegrate into gainful employment. However, courts should articulate how such factors impact upon the facts of the particular case. Generalities should not suffice. Furthermore, because one side has suffered prejudice, that does not necessarily mean that the male partner has caused it all. Are courts acting in an evenhanded manner when they visit upon the man the huge bulk of the responsibility for the woman’s economic disadvantage?

In order to promote respect for the legal system, it behooves lawyers and judges to be sensitive to the individuals before them. Just as it is politically incorrect (and contrary to law) to judge an individual by the colour of his/her skin, so too should we be loathe to judge someone based on his/her gender. It is the evidence in each particular case that is important: What role ‘on the ground’ did this particular parent play with the children? What does this particular parent have to offer this particular child at this point in time? What was the economic division of labour in this particular household and how has the breakdown of the marriage impacted upon this particular couple? What will be the economic result of this particular support award for these particular people? These are some of the questions that each and every family law lawyer and judge should be asking herself /himself.

Where are we now with respect to Gender Bias? We are the principal conductors within a system that is rife with gender bias. We are guilty of being influenced by our biases and prejudices as opposed to addressing the actual evidence in each and every individual case. We should be more vigilant. We should constantly challenge ourselves, question our own motivations, and critically examine our approaches to family law in general. We should be exceptionally mindful and sensitive to the emotional and financial stress that our ‘consumers’ experience. We should not lose sight of these weighty responsibilities whether we are lawyers, judges or even legislators.

ENDNOTES

1. http:// www.wlansw.asn.au/courtinitiatives.htm – June 1, 1999.

2. Professor Kathleen E. Mahoney: “Gender Bias in Judicial Decisions” (1993) Judicial Officers Bulletin 27.

3. Carey Linde: “Unethical Lawyers Abuse Children”, Submission to the Special Senate Commons Joint Committee on Custody and Access, http://www.divorce-for-men.com/downloads.htm.

4. . An Act to amend the Law relating to the Custody of Infants, 2 & 3 Vict. (1839), c. 54 (U.K.) – known as Lord Talfourd’s Act. This Act also allowed for the mother’s visitation rights to children in the custody of the father.

5. . Susan B. Boyd: “From Gender Specificity to Gender Neutrality? Ideologies in Canadian Child Custody Law” in Carol Smart and Selma Sevenjuijsen, ed., Child Custody and the Politics of Gender (London and New York: Routledge, 1989) at 130.

6. . Ibid. at 132.

7. . Guardianship of Infants Act, 1886, 49 & 50 Vict., c. 27, as noted in case comment on Young v. Young by W. Glen How and Sarah E. Mott-Trille, (1991) 29 R.F.L. (3d) 225.

8. . Anne Marie Delorey: “Joint Legal Custody: A Reversion to Patriarchal Power” (1989), 3 CJWL 33. The author notes that custody was often denied to the mother where she did not fulfil the role expected of her. “Marital misconduct” became a ground to deny custody. See also Nicholas Bala, “A Report from Canada’s ‘Gender War Zone’: Reforming the Child-Related Provisions of the Divorce Act” (1999), 16 Can. J. Fam. L. 164 at 166 – 169, with respect to the historical development of Canadian family law.

9. One example of how media coverage reflects an acute insensitivity to the suffering of men is: Adam Jones: “The Globe and Male’s – An Analysis of Gender Issues in Canada’s National Newspaper”, 1992, http://users.erols.com/jkammer/G&M.html. Amongst other topics, Mr. Jones discusses how men’s victimization as victims of violence and suicide is ignored or trivialized in the press. It would appear that the popular press cannot conceive “man” as “victim”. Colman asserts that this perception naturally carries over into family law. Another examination of gender bias and the media can be found at: Armin A. Brott: “Gender Bias in the Media: The Other Side of the Story”, Nieman Reports, Winter 1994, Nieman Foundation, Harvard University, reproduced at – http://www.erols.com/jkammer/nieman.html.

10. In a National Post/COMPAS poll taken in February 1999, 51% of men surveyed said women had too much control in divorce courts but only 20% of women held to that view. 44% of women said they needed more clout in the courts. National Post, March 2, 1999.

11. P. Susan Penfold: ”Questionable Beliefs About Child Sexual Abuse Allegations During Custody Disputes” (1997), 14 Can. J. Fam. L. 11. These assumptions (at p. 13) are:

(1) False allegations are very common during child custody disputes;

(2) In the context of a child custody dispute, false allegations are deliberately deceitful and stem from parental coaching or from the child lying;

(3) False allegations are made by mothers who are vindictive, mentally ill or have been abused themselves as children;

(4) Referral for physical examination will definitely demonstrate whether or not the child has been sexually abused;

(5) A skilled interviewer can discover whether a child has been abused or not;

(6) Assessment of the alleged perpetrator can rule out the possibility of abuse.

12. Ibid., at 25.

13. Melanie Rosnes: “The Invisibility of Male Violence in Canadian Child Custody and Access Decision-Making” (1997), 14 Can. J. Fam. L. 31.

14. Ibid., at 60.

15. I have borrowed liberally from a paper by Carey Linde: “A Case for Fathers and Co-parenting”, which can be downloaded from: http://www.divorce-for-men.com/downloads.htm. I have also borrowed extensively from Sanford Braver and Diane O’Connell: Divorced Dads: Shattering the Myths. The surprising truth about fathers, children and divorce, Penguin-Putnam, New York, 1998.

16. Some examples are: Keast (1986), 1 R.F.L. (3) 140 (Ont. H.C.); Linton (1988), 11 R.F.L. (3d) 444, 29 E.T.R. 14, 64 O.R. (2d) 18, 49 D.L.R. (4th) 278 (Ont. H.C.); Wedgwood (1989), 74 Nfld & P.E.I.R. 198, 23 A.P.R. 198 (Nfld U.F.C.); Benson (1994), 3 R.F.L. (4th) 291, 120 Sask. R. 17 (Sask. C.A.): Moge (1992), 43 R.F.L.(3d) 345 (S.C.C.).

17. Cynthia A. McNeely: Lagging Behind the Times: Parenthood, Custody and Gender Bias in the Family Court, 25 Florida State University Law Review 891 (Summer 1998) at fn. 96 of the McNeely article.

18. i8iiKatherine Webster: “Influential Study on Post-Divorce Gap in Income is Wrong”, Associated Press, May 17, 1996, http://www.bennett.com/gender/weitzman.html

19. Dr. Sandford Braver is quoted in the National Post (1 December 1998) as stating: “It would probably be fair to say that Weitzman’s findings are the most widely known and influential social science results of the last 20 years. … If anyone needed any evidence to fuel their outrage against divorced fathers, to contribute to their bad divorced dads beliefs … this is what they were waiting for.”

20. Cynthia A. McNeely: Lagging Behind the Times: Parenthood, Custody and Gender Bias in the Family Court, 25 Florida State University Law Review 891 (Summer 1998).

21. Id. cf. With respect to Weitzman’s acknowledgement that her study was in error, see also Katherine Webster: “Influential Study on Post-Divorce Gap in Income is Wrong”, Associated Press, May 17, 1996, http://www.bennett.com/gender/weitzman.html. This article also reports on another sociologist who reanalyzed Weitzman’s data and came up with drastically different percentages: 27% drop in women’s standard and 10% rise in men’s standard. CF: Susan Faludi: Backlash – The Undeclared War Against American Women, Crown Publishers, Inc., New York, 1991, at p. 21.

22. Susan Faludi: Backlash – The Undeclared War Against American Women, Crown Publishers, Inc., New York, 1991, at pp.19 – 24.

23. Source for parts of this summary: Book Review by Cathy Young in The Detroit News, October 21, 1998.

24. Ross Finnie, Carolina Gilberti, Daniel Stripinis: “An Overview of the Research Program to develop a Canadian Child Support Formula”, Department of Justice, Canada, 1995.

25. Ibid., pp. 3-4, 31-34.

26. Ibid., at p. 34.

27. Ibid., at p. 31.

28. Ibid., at p. 4.

29. Id.

30. Ibid., at p. 35.

31. Ibid., at pp. 35 – 36.

32. Ibid., at p. 36.

33. Baker v. Baker (1996), 22 R.F.L. (4th) 13, 182 A.R. 41 (Alta Q.B.).

34. Joan B. Kelly: “The Determination of Child Custody”, Children and Divorce, Vol. 4 No. 1, Spring 1994.

35. Edward Kruk: “Psychological and Structural Factors Contributing to the Disengagement of Noncustodial Fathers After Divorce”, Family and Conciliation Courts Review, Vol. 30, No. 1, January 1992.

36. Dr. Richard A. Warshak’s submission to the Joint Interim Committee on Family Law for State of Missouri. Dr. Warshak is author of “The Custody Revolution – The Father Factor and the Motherhood/Mystique”.

37. Kyle D. Pruett: The Nurturing Father, Warner Books, 1987.

38. Graeme Russell and Norma Radin: “Increased Paternal Participation”, Chapter 9 in Fatherhood and Family Policy edited by Michael E. Lamb and Abraham Sagi, Lawrence Erlbaum Associates, 1983, page 157. See also: Howard Dubowitz, MD, MS; Maureen M. Black, PhD; Mia A. Kerr, MS; Raymond H. Starr Jr, PhD; Donna Harrington, PhD: “Fathers and Child Neglect”, Archives of Paediatric and Adolescent Medicine, Volume 154, No. 2, February 2000, reproduced at: http://archpedi.ama-assn.org/issues/v154n2/full/poa9069.html. A recently published book, authored by Professor Susan Golombok of City University in London, suggests that boys adjust better after divorce when they live with their fathers rather than their mothers. See: Sunday Times, May 21, 2000: http://www.sunday-times.co.uk/news/pages/sti/2000/05/21/stinwenws01021.html

39. K. Alison Clarke-Stewart and Craig Haywood: “Advantages of Father Custody and Contact For the Psychological Wellbeing of School-Age Children” (1996), 17 Journal of Applied Developmental Psychology 239.

40. B.B. v. T.H.B., unreported, digested at [1999] O.J. No. 45 (Ont. Fam. Ct) Philp, J., 4 January 1999, at paragraph 148.

41. Dr. Richard A. Warshak: The Custody Revolution – The Father Factor and the Motherhood/Mystique, Poseidon Press. 1992)

42. Id.

43. Id.

44. Michael E. Lamb: The Role of the Father in Child Development, Whiley Press, 1976.

45. Id.

46. Id.

47. Shirley M.H. Hanson and Frederick W. Bozett: Dimensions of Fatherhood, Sage Publications, 1985.

48. Canadian Bar Association National Family Law Section Chairperson, Heather McKay, as reported in The Lawyers Weekly, May 29, 1998, p. 7: “Denial of child access not the main problem: CBA”.

49. Julie A. Fulton: “Parental Reports of Children’s Post-Divorce Adjustment”, Journal of Social Issues, Vol. 35, 1997, p. 133 However, the study is silent on what percentage of custodial fathers do the same. Fifty-three percent of the non-custodial fathers claimed their ex-wives had refused to let them see their children.

50. Glynnis Walker: Solomon’s Children – Exploding the Myths of Divorce, New York: Arbor House, 1986.

51. Excerpt from a Letter to the Editor, The Lawyers Weekly, July 24, 1998, by Gene C. Colman.

52. The Fathers’ Rights and Equality Exchange Web Site: http://www.dadsrights.org/myth_content.shtml

53. Justice Mary Lou Benotto: “Ethics in Family Law: Is Family Law Advocacy a Contradiction in Terms?”, Presented to the Advocates’ Society Conference in Nassau, Bahamas, 2 December 1995, http://www.razberry.com/raz/divorced/benotto.htm.

54. Andrews v. Andrews, 1999 CarswellOnt 3019, 50 R.F.L. (4th) 1, 124 O.A.C. 259, 45 O.R. (3d) 577 (Ont. C.A.).

55. Munro v. Munro, 1997 CarswellOnt 3905, 33 R.F.L. (4th) 464 (Ont. C.A.).

56. Marcel Strigberger: “Strike One, You’re Out”, http://www.legalhumour.com/articles/Women.htm Reproduced at the conclusion of this paper with the kind permission of Mr. Strigberger.

57. Joanne Stewart: “To Have it All”, Matrimonial Affairs, Vol. 11, No. 6, April 2000, 22 – 24.

58. Various articles by Donna Laframboise. See her website at: http://www.razberry.com/.

59. Bill S-9, Second Session, Thirty-sixth Parliament, 48 Elizabeth II, 1999.

60. Debates of the Senate, Second Session, Thirty-sixth Parliament, Volume 138, February 17, 2000, pp. 655 – 662.

61. Debates of the Senate, Second Session, Thirty-sixth Parliament, Volume 138, April 6, 2000, p. 1030.

62. http://www.sharedparenting.com/sharedpa/cgi-bin/HyperNews/get/issues/public-bias.html

63. Paulhus v. Regnier, 1997 CarswellSask 742 (Sask. Q.B.), Wright, J., September 17, 1997.

64. Sutherland v. Sutherland, [1998] B.C.J. No. 342 (B.C.S.C.), Edwards, J., February 10, 1998.

65. Petrocco v. Von Michalofski (1998), 36 R.F.L. (4th) 278, 51 O.T.C. 110 (Ont. Gen. Div.), January 16, 1998. This decision was upheld on appeal: 1998 CarswellOnt 4813, 43 R.F.L. (4th) 372 (Ont. Div. Ct).

66. Pilotte v. Pilotte [1998] O.J. No. 865 (Ont. Prov. Div.).

67. Martin v. Gerard, [1997] O.J. No. 2517, (Ont. Gen. Div.), June 16, 1997.

68. Paul v. Pisio, [1988] S.J. No. 243 (Sask. Q.B., Fam. Law Div.), Dovell, J., April 17, 1998.

69. Scharf v. Scharf, [1998] O.J. No. 199, (Ont. Gen. Div.), January 16, 1998.

70. MacLeod v. Druhan (1997), 34 R.F.L. (4th) 206 (N.S. Fam. Ct), Gass, J.F.C.

71. Baryani v. Longe, [1998] O.J. No. 606, (Ont. Gen. Div.), J. Wright, J., February 10, 1998.

72. One has to wonder to what extent the law applies and to what extent the predispositions of the judge may prevail. The same judge gave favourable consideration to another NCP father. Seeley v. McKay, [1998] O.J. No. 2857, (Ont. Gen. Div.), Wright J., March 26, 1998 – In that case, the father pointed to his access costs involved with his 250 kilometer drive to see the children and to the more important point that in a previous written agreement, the two sides had agreed that this was factor that “warranted special consideration” (paragraph 23). Justice Wright appeared to have been persuaded that since the parties had previously agreed that imposition of any child support would impose a hardship upon the father such that their agreement was that no child support was to be paid, therefore the court should reduce the table amount. And Justice Wright did just that. He cut in half the table amount of $682 to $341 per month.

73. Camirand v. Beaulne, 1998 CarswellOnt 2216, [1998] O.J. No. 2163, 160 D.L.R. (4th) 749 (Ont. Gen. Div.), Aitken, J., May 15, 1998.

74. Ibid., at paragraphs 28 – 30.

75. Hughes v. McColl, [1998] O.J. No. 2627, 1998 CarswellOnt 2940, (Ont. Gen. Div.), Aitken J., June 17, 1998.

76. Smith v. Stebbings, [1997] O.J. No. 4605 (Ont. Gen. Div.), Aitken, J., July 22, 1997.

77. In yet another decision by this same judge [Hughes v. Bourdon, [1997] O.J. No. 4263 (Ont. Gen. Div.), Aitken, J., August 5, 1997], we must give credit where credit is due. Her Honour did allow the undue hardship claim. The NCP father earned only $38,664.00 while the custodial mother earned $20,280 but her new spouse earned over $80,000. The NCP father had custody of two children from a previous relationship. What appears to be crucial to the result was that mother’s counsel conceded that the father would suffer undue hardship! The judge took the table amount of $335.00 per month and reduced it to $300.00! The mother had also sought the father’s pro rata contribution to the child care costs, calculated at $1,461 for past costs and ongoing costs of $215.00 monthly. The judge declined to award these amounts due to the father’s expenses for the two children with him. Given this judge’s other decisions, I cannot help but wonder what the result would have been had the mother’s counsel not conceded undue hardship.

78. Dergousoff v. Dergousoff, 1999 CarswellSask 231, 48 R.F.L. (4th) 1, [1999] 10 W.W.R. 633 (Sask. C.A.).

79. Wang v. Wang, 1998 CarswellBC 1809, 110 B.C.A.C. 302, 178 W.A.C. 302, 164 D.L.R. (4th) 146, 39 R.F.L. (4th) 426, 58 B.C.L.R. (3d) 159, [1999] 4 W.W.R. 752 (B.C.C.A.).

80. Justice Aitken in Gervais v. Tongue, 2000 CarswellOnt 461 (Ont. S.C.J.).

81. Sherman v. Sherman (1999), 45 R.F.L. (4th) 424, 44 O.R. (3d) 411 (Ont. C.A.).

82. FamilyPro Family Law Newsletter, 2000-20, May 16, 2000.

83. The Child Support Guidelines are designed to assume that the NCP has no direct expenditures on the children. See: Formula for the Table Amounts Contained in the Federal Child Support Guidelines: A Technical Report, Research Report CSR-1991-1E, Department of Justice, December 1997, particularly at page 2.

84. Roebuck v. Roebuck (1983), 26 Alta. L.R. (2d) 289, 34 R.F.L. (2d) 277, [1983] 5 W.W.R. 385, 45 A.R. 180, 148 D.L.R. (3d) 131 (Alta C.A.). Paragraph number references in the text relate to the paragraph numbers assigned by Carswell.

85. Bendle v. Bendle (1985), 48 R.F.L. (2d) 120 at 121(Ont. Prov. Ct, Fam. Div.).

86. Id. at 130.

87. Tyabji v. Sandana (1994), 2 R.F.L. (4th) 265, 112 D.L.R. (4th) 641 (B.C.S.C.) [at page 270, para 11 R.F.L.].

88. L.(V.A.) v. L.(J.F.), 1994 CarswellOnt 2169 (Ont. Gen. Div.). Cf. Dumouchel v. Dumouchel, 1995 CarswellOnt 2059 (Ont. Gen. Div.) at para 11.

89. Robinson v. Filyk (1996), 28 B.C.L.R. (3d) 21, 1996 CarswellBC 2664, 84 B.C.A.C. 290, 137 W.A.C. 290 (B.C.C.A.) at para 22 (CarswellBC). This case was cited favourably in Mbaruk v. Mbaruk (1997), 27 R.F.L. (4th) 146, 1997 CarswellBC 362 (B.C.S.C.).

90. MacCabe v. Westlock Roman Catholic Separate School District No. 110 (1998), 226 A.R. 1, [1999] 8 W.W.R. 1, 69 Alta.L.R.(3d) 1(Alta Q.B.); stay pending appeal granted upon conditions: (1999), 243 A.R. 280, [1999] 10 W.W.R. 461, 70 Alta.L.R. (3d) 1(Alta Q.B.)

91. Bannister v. General Motors of Canada Ltd. (1998), 40 O.R. (3d) 577, 164 D.L.R. (4th) 325, 112 O.A.C. 188 (Ont. C.A.).

92. R. v. Ewanchuk, [1999] 1 S.C.R. 330, (1999), 169 D.L.R. (4th) 193, 235 N.R. 323, [1999] 6 W.W.R. 333, 131 C.C.C. (3d) 481, 232 A.R. 1, 22 C.R. (5th) 1 (S.C.C.).

93. In R. v. A.G., [2000] S.C.J. No. 18 (S.C.C.), Justice L’Heureux-Dubé stated: “This Court has repeatedly held that myths and stereotypes have no place in a rational and just system of law, as they jeopardize the courts’ truth-finding function. (See: R. v. Seaboyer, [1991] 2 S.C.R. 577, at pp. 604 and 630, per McLachlin J., and at p. 651, per L’Heureux-Dubé J. dissenting in part; R. v. Osolin, [1993] 4 S.C.R. 595, at p. 670, per Cory J.; R. v. Esau, [1997] 2 S.C.R. 777, at para. 82, per McLachlin J.; R. v. S.(R.D.), [1997] 3 S.C.R. 484, at para. 29, per L’Heureux-Dubé and McLachlin JJ.; R. v.Ewanchuk, [1999] 1 S.C.R. 330, at paras. 91-99, per L’Heureux-Dubé J.; R. v. W.(G.), [1999] 3 S.C.R. 597, at para. 29, per L’Heureux-Dubé J.).