Explanation:

I have been working on a book, which I thought I would start to serialise here. The provisional working title is An Exercise in Absolute Futility: Whatever happened to family justice? Some will recognise the quotation. Perhaps one day I will be able to get the thing published, but for now it will just be a series of blog posts. The book is made up of 34 chapters, plus a prelude, introduction and prologue, which is where we shall start.

Prelude

This week I reunited a ten-year-old boy with his father. This little boy had not seen his dad for four years and, whilst he was nervous, he was also curious and as he waited he asked, ‘what does he look like, does he look like me?’ His dad was waiting in another room, his heart ‘bumping through his chest’ with emotion at finally being able to see the son he was parted from after family separation four years previously. A bag of presents, things he had kept for his son over four years, sat at his feet and food to share was on the table. After half an hour, the boy was sitting on his dad’s knee, his dad’s eyes full of tears but his face full of love and smiles. This man had, for four years, been portrayed as dangerous and this boy had, for four years, been made to feel afraid of his father. Four years of court hearings, allegations and more allegations. Four years of thwarted contact orders and four long years of missed-out love and affection. This is a man who is subject to the legislation that was brought about forty years ago. Legislation which requires that he proves that he is not what he is alleged to be and, if he shows any feeling about the accusation, it is viewed as proof that he is. This is a man whose relationship with his child is not viewed as being his natural right by too many people, even though he was married to the mother of his child and even though he holds parental responsibility. The boy put his arms around his dad’s neck and said, ‘I love you dad, I missed you’. It was almost more than any of us in the room could bear. I wish I could say this case was rare. I can’t. I wish I could say that this man had been prevented from being with his son because he was violent, dangerous and abusive. I can’t, because he was none of those things.

Karen Woodall, Centre for Separated Families (Woodall, 2012a)

Introduction

It is remarkable that such a grossly unjust system has not been noticed. One explanation is that no one knows what happens… until it happens to them – and even then they can’t believe it. Any objections are dismissed as implausible.

Melanie Phillips (Phillips, 1999)

In 1999, having been driven to the very limits of tolerance by my wife’s repeated infidelities, I reluctantly decided to petition for divorce. There is only one acceptable ground for divorce: that the marriage has broken down irretrievably, but there is a choice of five ‘facts’ on which one may substantiate this, and I naturally chose adultery as my fact.

Had I known the consequences of my decision I might have reconsidered, but like every other petitioner for divorce I was ignorant and naïve. For a time our separation was amicable, and we were able to share the care of our only child amicably and cooperatively. One of my ex-wife’s many relationships then became more permanent and my exclusion as a father began.

They married in 2001 and chose to move, with her parents, to a huge, decaying mansion in a remote part of Scotland with the preposterous idea of running it as a holiday business, an ambition for which none of them had the slightest aptitude or experience. I sought to prevent the move through the courts; had I known anything then about family law I would have known this to be futile. I also sought to maintain what is quaintly called ‘contact’ with my son; again, the effort was pointless. During the course of proceedings it emerged that I was not even his biological father.

For nearly eight years I was allowed no further communication – no ‘phone calls, no cards, no emails: nothing. For nearly eight years he was neglected by his mother, bullied by his step-father and emotionally and sexually abused by his grandmother. Without remission. By 2010 the grandfather had died, the holiday business had failed, my ex, a known epileptic, had become disabled following an attack while driving, and she and her husband had acquired a two-year-old: my severely damaged son was an encumbrance and, aged nearly 16, was thrown out of his home.

This book tells a tale that has never before, I think, been told. It is a story of the abuse by the state of its citizens: of ordinary families – fathers, mothers and their children. It is the story of an extraordinary social experiment which has allowed the state to progressively inveigle its way into private family life and of how a few members of those families, provoked beyond endurance, have fought back.

Most people will know nothing of this story until they and their families become a part of it, for it is conducted in secret, behind sealed doors, and those who tell their own stories are liable to prosecution and imprisonment. It is a story shunned by the press and by politicians, who invent convenient excuses to defend their refusal to get involved.

Most parents, when they separate, are able to make agreements about child care relatively amicably between themselves – at least, so we must assume. A sizeable minority, however, requires professional help to come to agreement, and some of these parents will end up asking the family court to resolve their differences, and thus they will unwittingly invite the state into their homes.

A parent classically uses the family justice system because he is prevented by the other from playing a full role in his child’s life: about half of all family court applications and two thirds of private law applications are for a parent to have ‘contact’ with his child. Since the Government constantly chastises parents who cannot parent cooperatively without state intervention and praises those who can, you would think it would be only too happy to use the court system to assist struggling parents towards a comparable agreement and to support the parent who tries to do the responsible thing.

The typical response of the system seems, therefore, incomprehensible. The court will immediately establish a huge gulf between the parents by declaring that all authority and responsibility for the children is to be vested in one parent only – the ‘primary carer’, ‘resident parent’ or ‘person with care’ – while the applicant will be relegated to the position of a mere visitor in his child’s life: the ‘non-resident’ or ‘contact’ parent. The applicant will, furthermore, find his application viewed with deep suspicion, as an attempt to control and coerce his former partner against her wishes, and he will find himself subjected to investigations and tests of an invasive and Kafkaesque nature.

The power imbalance created forces the non-resident parent to make successive applications to the court if he is to restore his relationship with his child; the court may make several orders for ‘contact’, each of which will specify less time than the one before. The other parent may ignore these orders with impunity, and the system will neither monitor this nor enforce the order; thus all contact will eventually be lost. The system is adversarial, rather than conciliatory, which makes disputes hard to resolve and leads to many becoming intractable and protracted. This takes its toll on parents, but is devastating for children. Litigants should be guided through the system by lawyers, but lawyers are often a part of the problem and far too many parents are forced to represent themselves and clog up the courts because of high costs and the diminishing availability of public funding.

The scale of this issue is horrendous, but because it is hidden it goes unnoticed. Official policy is to claim that only a small minority of dysfunctional parents culpable for the situation in which they find themselves and unable to cooperate use the court option. The official and ubiquitous 10% figure used, however, is a misinterpretation of an entirely different statistic derived from a report (Blackwell & Dawe, 2003) which showed that only 11% of successful contact arrangements had been ordered by the courts.

The confusion may have arisen from the use of the statistic in the Government’s Green Paper Parental Separation: Children’s needs and parents’ responsibilities, which stated, ‘only 10 percent of separating couples with children have had their contact arrangements ordered by the courts’ (Departments for Education and Skills, Constitutional Affairs & Trade and Industry, 2004). That misrepresents the Blackwell/Dawe survey – which dealt solely with contact which was working. Although it doesn’t tell us what proportion of parents go to court, the statistic does reveal that, when contact works it is seldom achieved through the courts. I calculate that the real figure is twice the official one, at around 20%.

To assume that the majority of parents who don’t litigate reach satisfactory agreements is a huge leap of faith; Blackwell and Dawe found only 50-60% of parents reached agreement and 30% were dissatisfied with it. In 2007 43% of resident parents reported having no agreement at all (Lader, 2008). Large numbers of agreements break down, leading to the complete cessation of the father/child relationship in 60% of cases within two years (Butler-Sloss, 2003). Most parents who need to go to court are not doing so.

The Blackwell/Dawes report shows that courts are not the best place to resolve these disputes: the adversarial nature of the courts automatically pitches wife against husband, and father against mother while at the same time expecting everyone to act at their most ‘reasonable’ when the emotions, fears and uncertainties of the moment make them least able to do so. The adversarial system is designed to produce an all-out winner; the alternative would be an inquisitorial system in which the court, instead of sitting as referee while the parties slug it out, is actively involved in investigating the facts of a case.

I use the male pronoun to represent the non-resident parent as up to 97% are fathers (Kielty, 2006); together they have launched numerous organisations designed to raise awareness and convince governments to bring about legislative change. They are not united in their approach, however, and while some argue for the better enforcement of contact, others demand a presumption of shared, cooperative parenting to be enshrined in law whilst others still favour removing parental disputes from the courts altogether, to be resolved in an entirely different way.

Perversely there is powerful opposition to shared parenting from a small but vociferous and politically influential lobby. They believe mothers have an exclusive right to decide who has contact with their children post-separation and courts have no right to interfere. They believe mothers have legitimate reasons to refuse contact and that separated fathers represent a threat to their children. They have been remarkably successful in preventing a presumption of reasonable contact or shared parenting reaching the statute book.

No politician will breach the politically correct status quo by standing up for the rights of fathers; anyone who speaks up for the rights of children is dismissed as a fathers’ rights lobbyist: children have no independent political voice. A couple of politicians – such as the Conservative Iain Duncan Smith – warn of the effects of growing family breakdown, and some – such as the Liberal John Hemming – speak out against the injustices in public family law (the procedures which are supposed to protect children from neglect and abuse), but it is up to parents themselves to campaign for fairer private law outcomes (disputes between mothers and fathers). Children law generally is regarded as a blind alley only explored by politicians whose careers are behind them. This book explores how this situation has arisen and examines some of the efforts made by parenting organisations to persuade politicians to take family breakdown and its fallout seriously.

The operation of family justice in the UK has been and continues to be a 50 year social experiment which has taken children as its test subjects. Later I shall compare this with the similar experiment conducted in Russia nearly a century ago by the Bolsheviks. We are repeating this experiment in our own time and in our own country, and we have been doing so since the 1960s. All our major political parties now adopt a politics which embraces unilateral divorce, abortion on demand, and the legitimising of births outside of wedlock. To this we must add innovations which go further than the Bolsheviks did, such as same-sex marriage, and the deliberate artificial creation of fatherless children.

Huge numbers of state – and a few private – employees now have a professional and financial interest in the breakdown of your family. Because of the devastating effect of family breakdown on children and the wide range of social pathologies it creates, family breakdown leads to an increase in state control. Final authority over children is handed to the state, enabling the snatching of children – especially if their parents are uneducated or have learning difficulties – and their reallocation. The beneficiaries of these children often work in the public sector and can therefore be relied on to bring up the children in government-approved ideology. Some have presented this as a form of eugenics, where the goal is ideological rather than racial purity.

The new Bolsheviks have learnt that by far the easier way to achieve this is to remove fathers rather than their children from the home, because mothers will then invite the state in willingly. To this end every aspect of our lives over which the family justice system has influence – divorce, residence, contact, child support enforcement, eviction from the home, confiscation of property, even imprisonment in secret hearings have been directed – a vast, ever-metastasising industrial complex whose over-riding objective is to remove fathers from families: as the American academic Stephen Baskerville identifies, ‘the power to remove the father is the cardinal power of family court’ (Baskerville, 2007).

As the family succumbs, so does society. Fewer than 1 in 30 couples cohabited before the Second World War (Buck & Scott, 1994), now, despite the destabilising effect it has on subsequent marriage, more than 90% do (Centre for Social Justice, 2009). Half of children are born out of wedlock (Benson, 2010b), and half will see their families disintegrate before they reach 16 (Probert & Callan, 2011). Children brought up in these fractured, drifting families do not learn the skills necessary to form stable families themselves. The commitment which used to hold both families and society together has become a memory and is widely derided, not only on the streets, but also by politicians and social commentators.

The public was never consulted about this; we were never asked if we wanted our families torn apart, if we wanted this unprecedented, irresistible intrusion of a relentlessly expanding state into areas which had previously been private: this rape of the family. The forces of family breakdown are winning the battle; the opposition is ill-organised, poorly-funded and conflicted. The public have remained ignorant of the politicisation of the family and continue to marry, form relationships and have children. Only on the dissolution of marriage does the degradation of the contract become apparent, with many men experiencing shock and trauma on discovering how few rights they still possess. Family law is no longer based on clear principles and is developed on an ad hoc basis by unelected judges whose agenda is unencumbered by concern for the family, for any concept of justice, or for individual rights.

In 2010 the Labour Government instituted a review of the family justice system which culminated in the Children and Family Act 2013; in this work we shall also look at the process of the review and the report which was produced and at the reforms the Act introduces. We shall question whether they shall have any positive effect or merely continue the rape of the family.

Works Cited

Baskerville, S. (2007). Taken into Custody: the War against Fathers, Marriage, and the Family. Cumberland House.

Benson, H. (2010b). Family breakdown in the UK: it’s NOT about divorce. Bristol: Bristol Community Family Trust.

Blackwell, A., & Dawe, F. (2003). Non-Resident Parental Contact. Department for Constitutional Affairs.

Buck, N., & Scott, J. (1994). Household and Family Change. In N. Buck, J. Gershuny, D. Rose, & J. Scott, Changing Households: The BHPS 1990 to 1992 (p. 79).

Centre for Social Justice. (2009). Every Family Matters: an in-depth review of family law in Britain. Centre for Social Justice.

Departments for Education and Skills, Constitutional Affairs & Trade and Industry. (2004). Parental Separation: Children’s Needs and Parents’ Responsibilities. London: HMSO.

Kielty, S. (2006). Similarities and differences in the experiences of non-resident mothers and non-resident fathers. International Journal of Law, Policy and the Family.

Lader, D.(2008). Omnibus Survey Report No.38: Non-resident parental contact, 2007/8. Cardiff: Office for National Statistics.

Phillips, M. (1999). The Sex-Change Society: Feminised Britain and the Neutered Male. London: Social Market Foundation.

Probert, R., & Callan, S. (2011). History and Family: Setting the records straight. Centre for Social Justice.

Woodall, K. (2012a, June 19). Why gender matters: balancing support for mothers and fathers after family separation. Retrieved from Karenwoodall.wordpress.com.