Already a subscriber? Log in
The case didn’t reach court for nearly a year, during which time Paul didn’t see his daughters. The court eventually ordered that Paul could see his daughters for 45 minutes, in a contact centre, twice a month, with his wife present. But even this proved too much for her; after the first visit, she refused to bring them for further contact. He returned to court; rather than attempting to enforce its original order, the court reduced his access to 45 minutes of supervised contact three times every two months. The court refused his request for open telephone contact on the grounds that it would cause stress for his wife. Eighteen months later, Paul has seen his daughters three times, for just 45 minutes per visit, under the strict supervision of their mother. On the advice of a child psychologist, Paul has been instructed not to touch his daughters during these brief meetings, lest he upset his ex-wife.
Some of the more dramatic cases in our club involve ‘leave to remove’ cases, where a mother – yes, it is always the mother -applies to take the children to live permanently in another country. Though the official line is that there is no presumption in favour of a mother wishing to leave the country, in fact it is extremely difficult to prevent her doing so.
After taking their three-month-old son and moving back in with her parents, Nigel’s wife applied to move with their son to Philadelphia, where she claimed to have a wonderful career opportunity. She had obstructed Nigel’s contact before her application. A British national, she had never worked or lived in the US, and had no other family there. The judge overruled Nigel’s objections, saying that his wife would be distressed if forced to stay in London against her wishes. He granted Nigel visits of two hours a day for three consecutive days once a month. Nigel made the monthly trek to Philadelphia for six months, sometimes to find the visits cancelled and never to enjoy one minute more with his son than the court had ordered. But then the dream job in Philadelphia apparently turned sour, and Nigel’s ex-wife moved to Seattle. Once there, she applied to reduce Nigel’s visits from once a month to once every three months. The English court agreed, and then transferred jurisdiction to the courts in the state of Washington.
Nigel’s visits are still fraught; someone is always present to watch him, often videotaping his time with his daughter. The visits are prone to be cancelled at the last minute. He has consulted lawyers in the US, who have expressed shock and dismay at the approach of the English courts to his and other cases.
‘Is that legal? Can she do that?’ ask people who hear stories like Paul’s and Nigel’s. The answer is a resounding ‘Yes.’ She can do whatever she pleases.
Lesson number one for any man in a child-care dispute: you are guilty until proved innocent. She can say and do anything to put you on the defensive, and you will be on the defensive. Meanwhile, she can be an emotionally incompetent parent, but that is not considered material if the child is clothed, fed and sheltered. The burden is on you to prove that your child should see you or spend more time with you or stay the night with you. If the mother of your child decides to close your contact, she can do so, regardless of a court order. Sure, you can apply to court to reopen contact, get an appointment three months hence, and a judge will probably eventually order that some contact be resumed. But you will have missed several months of your children’s lives, probably on some minor, possibly fabricated pretext.
Lesson number two is that the court rightly considers your child’s wellbeing to be paramount in all its decisions. But that is a cloudy concept, and many judges consider the wellbeing of your ex-wife, as the primary care-giver, to be tantamount to that of the child. So she can say, ‘He stresses me out,’ and a court may well restrict your contact with your children on that basis.
Lesson number three is that nobody besides your friends and family cares, despite this being the most pervasive source of dissatisfaction with the family-law system. It isn’t the only problem with the system. There are genuine cases of abuse or negligence by fathers; mothers incapacitated by drugs, alcohol, violence; incapable mothers and fathers; difficulties in establishing paternity and the like. But among men who have had a child with a woman to whom they are no longer married or in a relationship with, some 90 per cent say they would like to spend more time with their children. At the same time, 42 per cent of children report that their mothers have tried to prevent them from having contact with their fathers. A much higher proportion of men say this has happened to them. Yet there is no men’s movement to speak of. Talk of fathers’ rights is usually met with derision. We are seen, even by the judiciary, as a bunch of obsessive softies who haven’t managed to move on. Society is telling us: walk away.
It’s not supposed to be this way. Parliament recognised long ago that family law left little room for divorced fathers, and sought to rectify the problem with the Children’s Act of 1989. That Act did away with the concept of custody. Instead, it defined a series of parental responsibilities and parental rights. These are in theory shared equally by the primary care-giver and the ‘non-resident’ parent. They include the responsibility to feed, shelter and clothe the child, and provide for his or her education, health and wellbeing. The child has a right to a relationship with both parents, but nowhere is a minimum regime of contact defined. The every- other-weekend-and-half-of-school-holidays formula – the accepted standard, paltry as it is – is not part of English law. And even that right can be trampled on by a primary care-giver (almost always a woman), with no consequences.
Why? The explanations are murky. Some say judges want minimum hassle and maximum throughput on cases. Who can blame them? After all, let’s say you’re a judge, and you take a reasonable and balanced decision between a father and a mother at odds over his contact with the children. There’s a good chance she will violate it, abscond with the children, create a scene in the courtroom. However, if you err on her side, tell the father to back off and leave them in peace, he’ll take it like a man, and everyone will shut up. No judge wants to be accused of sexism, of prejudice, of conspiracy. So, one way to avoid problems is to try to keep the people who cause problems out of court, i.e., placate mad mothers, punish earnest, would-be fathers.
Others believe the reflex in favour of the mother is a legacy of political feminism. ‘This isn’t the will of Parliament, but it is the will of politicians,’ one MP told me. ‘This is simply an area of policy and the law that has been ceded to the women’s movement.’
More likely the explanation is inertia and defeatism. Parliament insists it can’t get involved with judicial decisions, and the judiciary says its decisions reflect the will of Parliament, though this is demonstrably not the case. Promotions in the judiciary depend on well-written and reasoned decisions that cite precedent and don’t make waves. Judges at the top of the family division have a vested interest in seeing their precedents endure. So the status quo is accepted, though most of those working in the field of family law know it is wrong, antiquated and counterproductive.
To be sure, some in the judiciary recognise that there is a problem. The Lord Chancellor’s department issued a report earlier this year entitled ‘Making Contact Work’. The very existence of this report is an acknowledgment that contact isn’t working in Britain. The report proposed many sensible steps to improve the system, including empowering courts to order family counselling and education for parents who deny the importance of the other parent. It proposed considering a California-style system of equal parenting, in which the starting point at separation or divorce is that each parent will have equal time with and responsibility for the children, unless there is a reason not to allow such a regime.
But even those proposals have raised opposition. Women’s groups that participated in the report insisted that the key issue to focus on was domestic violence, and argued against a tilt towards equal parental rights.
Lastly, in the name of protecting our children’s anonymity, our family courts operate in a shell of secrecy which rivals that of any dictatorship. Though the reason for this secrecy is a good one, the result is what happens in any institution that is shielded from scrutiny: abuse, arrogance and overreach.
Because of these constraints, I cannot write in detail about my own case, and must use a pseudonym. Details of the other stories have also been changed to protect the children. But I have been through something like Nigel’s experiences, and my son now lives in another European country. His mother is British, not a citizen of that country, had no family ties there, and did not enjoy better career prospects there than in Britain. She had obstructed my contact with our son before leaving, and a court welfare officer recommended against leave being granted. The English judge brushed that aside and granted her permission to leave, on the grounds that she is an unstable woman who may be distressed if forced to stay. The judge said that she might obstruct contact again, so it was best to let her go. A total judicial cop-out.
That, in a nutshell, is our judiciary at work. The mere possibility of stress for a mother is deemed more harmful to children than a certain reduction and possible permanent cessation of contact with the father. Fathers, it would seem, are expendable. This is despite a growing body of research and evidence to the contrary: it is now widely accepted that a strong bond with both parents is the most critical factor in a child’s stability and emotional wellbeing.
The lack of fairness and equality, the financial and practical burden placed on me now, and the consequent pain and anger are taking their toll. By disregarding fathers’ rights and emotional wellbeing, our system today is testing their commitment beyond what can be reasonably expected. It happens all the time. That’s why so many walk away.
P.S.: I haven’t walked away. I have been travelling every month to see my child. It is expensive and disruptive, but it is the only way to see him. I am considering moving country to be more available to my son. I shouldn’t have to do that.
Also in Society
Latest
Comments
Join the debate for just $5 for 3 months
Be part of the conversation with other Spectator readers by getting your first three months for $5.
UNLOCK ACCESS Just $5 for 3 monthsAlready a subscriber? Log in