The May 2015 report authored by Dr Maebh Harding, from the University of Warwick and
Dr Annika Newnham of the University of Reading is based on a document analysis of a retrospective of 197 case files from five county courts in England and Wales over a six month period in 2011. Of the 197 cases, 23 were custody disputes between a parent and another relative, usually a grandparent.
In the “two parent cases”, fathers initiated 70% of the applications, whereas only 30% of the cases started with an application by a mother.
The most common type of court application was for an order to allow contact or access, making up 41% of their sample. Fathers brought 96% of all access applications. The majority of these applications were made in order to initiate or restart contact.
Applications which sought a sole residence order made up 43% of the sample. Similar numbers of applications for sole residence were made by fathers (32) and mothers (30) but their reasons for going to court differed.
Joint custody and joint residence applications amounted to only 7%.
Notably, in 2011 there was no presumption in the British law that the involvement of a non-resident parent would further a child’s welfare. In 2014 this presumption was added to the governing statute, the Children Act 1989.
In my view, the analysis of the data in the report suffers from the absence of real-life experience in the family law trenches. Let me give you some examples:
1. The authors discovered that in 51% of cases the father had been cut off from contact with the child and that in almost half of the parent cases (86 out of 174) mothers had made allegations of domestic violence against fathers. However, in only 45 of the 86 cases was their sufficient evidence of family violence.
The report reads “Court investigations into the truth of domestic violence allegations were rare and took place in only 21 of the 86 cases in which allegations of domestic violence were made.
Where fact-findings were held, few ended in a clear determination on the alleged facts. Instead, the question of domestic violence tended to be reconceptualised as being primarily about reducing the risk to the child and facilitating as much contact as was possible in the circumstances.”
In other words, even unproven domestic violence was used to minimize a father’s role in parenting.
THESE FACTS ACCORD WITH MY EXPERIENCE THAT MANY FATHERS ARE MARGINALIZED AFTER MARRIAGE BREAKDOWN AND ALLEGATIONS OF DOMESTIC VIOLENCE ARE USED AGAINST GOOD FATHERS TO THWART A CHILD/PARENT RELATIONSHIP.
2. The authors found that many of the cases took two years to resolve but expressed little concern about the delay saying:
“Time taken in the court process should not always be viewed as unnecessary delay. Cases need time to build trust between the parties and reach a workable child-centred conclusion ensuring contact was safe.”
THE REALITY IS THAT IF FATHERS BRING MOST OF THE APPLICATIONS FOR RESIDENCE OR ACCESS AND A RESOLUTION IS TWO YEARS AWAY, THE STATUS QUO CARRIES ON TO THE DETRIMENT OF THESE FATHERS AND THEIR CHILDREN.
3. The authors opine that going to court did not amplify or entrench the conflict between the parties finding that the vast majority of cases were resolved by consent orders. Only 25 of the 174 parent cases ended in a contested final hearing.
THE NAIVETY EXPRESSED IN THE AUTHOR’S FINDINGS ABOUT CONSENT ORDERS IS DISAPPOINTING. THE TRUTH IS THAT FATHERS ARE COMPELLED TO GO TO COURT TO OBTAIN RESIDENCE OR CONTACT ORDERS, AND MANY FATHERS SETTLE FOR WHAT THEY CAN GET AFTER YEARS OF FAILED NEGOTIATIONS WITH ADVICE FROM THEIR LAWYERS THAT FAMILY COURT JUDGES WORSHIP AT THE ALTER OF THE STATUS QUO.
Perhaps if academics conferred with family law lawyers when analyzing court data they would gain insight into the dynamics between feuding parents; understand the nuances and strategies employed by parents who seek to discount or eliminate the other parent; understand that children need both parents in their lives; and resist the attraction of the “primary parent” philosophy that is no longer relevant in today’s world.
The report is titled “HOW DO COUNTY COURTS SHARE THE CARE OF CHILDREN BETWEEN PARENTS?” and can be found at http://www.nuffieldfoundation.org.
Lawdiva aka Georgialee Lang