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Summer 2005 cover

National Observer Home > No. 63 - Summer 2005 > Articles

Do the Courts Regard Fathers As Redundant?

James Bogle

English divorce law is in many respects similar to that of Australia, and for Australians the English position in regard to divorced fathers and their children provides a valuable lesson.

Over the last thirty-five years we have witnessed an entirely new phenomenon virtually unknown in previous history, in which fathers have been systematically estranged from their own children by due process of law. And yet all through this time it has been claimed that the purpose of that due process has been to put the interests of children first. Section 1(3) of the Children Act 1989 in England specifically mandates the paramountcy of the children's interests. But in practice that has all too frequently meant an impoverishment of their relationship with their fathers by dint of their being delivered into the care of their mothers.

The situation has now arisen whereby, in Britain, five years after a divorce some 55 per cent of fathers do not see their children again until they are grown up and even then but rarely. That is a monstrous statistic; an appalling commentary on the current state of the family in our society. It represents a massive system failure at the very heart of our social fabric.

The consequences have been and are equally appalling. We have family breakdown on a huge scale and with it very wide-ranging ill effects. Children are being deprived of a father figure from an early age and there is now ample evidence to show that the damage done to children from family breakdown is far greater in most cases than from an unhappy relationship between the parents during a subsisting marriage.

Children from broken homes are more likely to have behavioural and psychological problems, are more likely to develop delinquent tendencies and later to engage in crime, are more likely to form unstable relationships themselves, are less likely to do well in their education and careers and are more likely to be physically and sexually abused.

How does this latter arise? Here is how. A study entitled "Broken Homes, Battered Lives" reviewed all the cases of abuse reported in the Family Court Reporter over recent times. The study showed that children were at least risk from the domestic situation consisting of two natural parents married but that far and away the greatest risk to children came from the domestic situation of children whose mother had a live-in boyfriend who was not the father of the children. Cases such as those of Tyra Henry, Kimberley Carlisle and Jasmine Beckford and others where horrific injuries, such as beatings, cigarette burns deliberately inflicted, fractured skulls, fractured limbs, internal injuries and bleeding, had been inflicted upon a child who usually had died as a result, fell chiefly into this category.

The live-in lover was not a father figure to the children in the proper sense of that phrase but little more than the mother's latest paramour, often in a line of succession with numerous others. The real father was either unknown or else divorced and estranged from his own offspring.

These cases have increased with the increase in family breakdown and divorce. More commonly, however, the ill effects of breakdown have been less immediately obvious. What has emerged is the ill effect of the absence of a father figure in the life of the child. The courts have always stated the need for a child to maintain a healthy relationship with the father but, in practice, as we shall see, the result of court proceedings has often been the reverse. All but the most zealous and dedicated fathers tend eventually to feel crushed by the repeated rebuffs that are delivered to them by the court proceedings and by successive judges, not to mention by their ex-wives, and eventually give up the struggle as a lost cause. Hence they all too frequently tend thereafter to see their children only rarely until they are grown up by which time the estrangement is complete.

Not merely the courts, but all involved agencies from the Court and Family Reporter service, social workers, police, schools, the medical profession, mediators, counselling services and much of the general public have a tendency to feel that the mother is more to be believed than the father and that disgruntled and dispossessed fathers who complain about the system are complaining because, well, they would wouldn’t they, after all that's why they got into the situation in the first place. Notoriously, the Court and Family Reporter system is affected by institutionalised sexism in favour of the mother. Everyone knows it but everyone pretends otherwise. Their alleged impartiality is like the Emperor's new clothes: simply not there.

It is not surprising, therefore, that we are now witnessing a mushrooming of men's groups in Britain and elsewhere campaigning for the rights of fathers and of children to see their fathers. Indeed, the campaign is having some striking success. Cynics would say that is because they have taken to picketing outside the homes of Family Division judges. Well, perhaps; but success nonetheless they are having. Most recently a High Court Judge, Mr. Justice Munby, created headlines in the media by saying what would once have been unsayable, namely that fathers were getting a raw deal from the family courts. Even the President of the Family Division of the High Court, Dame Elizabeth Butler-Sloss, has demonstrated a new awareness of the problem and has begun to tailor her judgments accordingly, at least to some extent, and an emerging consensus looking more benignly upon shared care and joint residence is beginning to be seen.

Part of the reason why change is slow and the problem partly hidden is because of the secrecy that the courts demand in relation to children proceedings. But that is not all. On a B.B.C. programme looking at the issue of children's advocacy, the Official Solicitor, who represents those without legal capacity or a litigation friend, was asked about the phenomenon of mother's obtaining injunctions against fathers to stop them seeing their children and the children and fathers being unaware of the duration of the injunctions. In at least one case, the father did not see his son for years after not realising that he could have applied to discharge the injunction within three months of its being made. The response of the Official Solicitor was to say that the courts and his office relied upon the custodial parent to inform the child (and, by implication, the father) that the injunction had expired or could be lifted. Such a response betrays a truly remarkable failure of insight into the nature of the often stormy and embittered relationship existing between estranged parents. It also shows a failure to understand the extent to which the custodial parent may be willing to treat the issue of contact with the children as a means of getting back at the estranged partner and of manipulating the non-custodial parent into complying with the demands of the custodial parent.

Hence, as has been commented: "And so you get, when people break up, a control from one, the children becoming the weapon and the shield. The weapon is ‘if you don’t do this for me, you won’t see your children’, so one party has control. And the shield is ‘give me this, or you won’t see the children’ and ‘don’t do this to me or you won’t see the children’. The children become the weapon and the shield."

How, by any stretch of the imagination, this can be said to be making the interests of the children paramount, is anyone's guess. The reality is that it is to put the interests of the children last. The courts and all associated agencies seek to put the blame for this situation upon the warring parents but that is a feeble cop-out. Given the fact that the parent who gets the children will also get the lion's share of the family property it is almost inevitable that the parents will be at war as a result and that they will find themselves using the children as the weapons in that war. If the system were fairer and not institutionally sexist, then there might be a greater hope of preventing the children from being used as weapons, but as things stand there is not the slightest prospect of this, and it is a species of fantasy for the courts and agencies to carry on the pretence that all the blame lies with one or both of the warring parents.

It is not necessary to point out that this phenomenon is by no means a purely British one. It is a common place throughout most of the common law world and, indeed, to a considerable extent in the legal systems of the West generally. In the Civil Law systems of Europe there is a similar phenomenon although perhaps not quite so far progressed.

In Britain it all began with the 1969 Divorce Reform Act which replaced the concept of a "matrimonial offence" with that of irretrievable breakdown evidenced by new grounds for divorce. The earlier regime dated from the Matrimonial Causes Act 1857 which removed divorce from the ecclesiastical courts. At that time divorce was disapproved by society and cases were largely limited to those of separation, which was the original meaning of the word "divorce". It was possible to be divorced also by Act of Parliament, a position dating from the time of Henry VIII, whose divorce, one need hardly add, had some fairly wide-ranging consequences.

The matrimonial offences included adultery, desertion and cruelty and had to be proved in the course of legal proceedings, often at great expense. Thus it was rightly said that only the rich could really afford to divorce. The proceedings followed the familiar civil law pattern: a trial with evidence, witnesses and cross-examination, often profoundly embarrassing and personal, a judgment and the granting of a decree of dissolution. Thereafter came proceedings ancillary to the divorce claim, still known as "Ancillary Relief", in which the various cross-claims and counterclaims for the matrimonial assets were considered and adjudicated. These were dealt with by a junior judge then known as a Registrar but now known as a District Judge and these proceedings were conducted in Chambers, that is, behind closed doors. This was partly for the public policy reason that matters involving children should not be conducted with publicity lest there be damage to the children thereby, who were, after all, entirely innocent in the proceedings.

This procedural framework, though clearly out of date, still enures in Britain. Why is it out of date? The reason lies with the development of matrimonial law after the 1969 Act.

The concept of matrimonial offence was replaced with grounds for divorce coupled with the irretrievable breakdown of the marriage. The grounds were adultery and desertion but in place of cruelty a much more nebulous concept: unreasonable behaviour. This latter quickly came to mean almost any form of behaviour at all. There is meant to be a two-stage test: is the behaviour objectively capable of being described as unreasonable? And then, was it unreasonable subjectively in the circumstances of this particular case. Objective considerations quickly went out of the window and the only question the court was really interested in was whether the petitioner considered the behaviour unreasonable.

Thus any conduct could be considered unreasonable for the purposes of obtaining a divorce decree.

This is illustrated by the case of Buffery v. Buffery in 1987. Mrs Buffery refused to say what conduct of her husband she considered unreasonable but contented herself in saying only that they had "drifted apart" and on that basis grounded her Petition. Despite the best efforts of her counsel and the court to get her to point to something unreasonable in her husband's behaviour, she persisted and was not granted a divorce. If she had but said that her husband unreasonably left the top of the toothpaste tube or listened to the music of Mahler which she did not like or snored or left his book on the table or did not like her hair-style or would not buy her the car she liked or the jewellery she liked or did not have a smart enough job or anything at all, she would have been granted her decree.

Obtaining a divorce became so easy that it was easier to achieve than was the initial marriage itself. Special procedures were introduced whereby decrees nisi are simply rubber-stamped by a court officer and posted on a notice-board in the court. No attendance is necessary and there is certainly nothing remotely resembling a trial. Only a fool contests the divorce since, unless a Buffery situation arises, the outcome is inevitable and the costs will have to be paid by the one fighting the divorce — often very considerable costs.

The old situation whereby an embarrassing matrimonial offence had to be proved had long gone.

The real fight was reserved for the so-called "Ancillary Relief" proceedings — the fight over money and children, and this conducted in secret, in Chambers. Hence arose the lack of knowledge of the media and the general public as to what occurs in such proceedings. Only the parties and the lawyers know what are going on. The lawyers are not telling, and the dispossessed father is simply not believed because of the "well he would say that, wouldn’t he?" principle. Only as the number of disposed fathers has reached a critical mass, have they begun to be heard.

This may be some comfort to fathers who are divorced in the future, but what of the hundreds of thousands of children who have suffered in the meantime? These innocents have been tormented by divorce and ancillary proceedings although they are entirely innocent and without blame. So many children ask "what have I done to deserve this?" and they are greeted by dumb silence. This is the real abuse that has been wrought, not by the parents alone, but by the system itself, made worse by institutionalised sexism against fathers.

Here one may condescend to detail. In the case of Whiston v. Whiston 1995, Robert Whiston petitioned for divorce on the basis of his wife's bigamy. He had married a Filipino bride who was a nurse. She had been violent against him and he had discovered that she had, in fact, been married before in the Phillipines. The District Judge nevertheless awarded the bulk of the assets to Mrs. Whiston saying that these days bigamy was of limited importance. Robert Whiston appealed to the High Court where Mr. Justice Ewbank said the same thing, extraordinarily, bigamy is not so big a deal these days. The husband appealed to the Court of Appeal where there was a dangerous outbreak of common sense. The wife ought not to profit from a crime, on the principle ex turpi causa non oritur actio, from a wicked cause no action should lie, since bigamy was still a criminal offence, something that the earlier judges had under-emphasised.

So Robert Whiston won as the Lord Chancellor, Lord Mackay of Clashfern, observed during the course of the debates in the House of Lords over his new Family Law Bill which later failed dismally. But what Lord Mackay failed to observe was that in pursuing his action and appeals, Robert Whiston later found that he had lost more money in costs than he would have done if he had simply allowed his ex-wife to have the assets ordered in her favour in the first place!

Commentators waxed eloquent in Mrs. Whiston's favour, one even saying that it was outrageous that she did not get the assets, after all, it wasn’t as if she were Dr. Crippen the mass-murderer, was it?

The commentators were plainly unaware that throughout the marriage Mrs. Whiston had frequently tried to murder Mr. Whiston including an attempt to set fire to him whilst he was in bed by pouring petrol over him and lighting it. Mrs. Whiston moved on to another much older man whom she persuaded to agree to make her a joint tenant of his property so that she would inherit if he died. She then murdered him by injecting him between the toes with poison. She might have got away with it but for her boasting which resulted in her trial for murder, conviction and a life sentence.

But none of this featured in the family proceedings. And she, being the wife, was assumed by the system to be telling the truth and to have right on her side.

An extreme example? It would be nice if it were. The leading authority on misconduct is the case of Kyte v. Kyte. Conduct is not an issue judges like to consider — save the financial misconduct of the husband — because it seems to hark back to the bad old days of matrimonial offences and requires a trial to investigate allegations. But misconduct was an issue in Kyte. The court found, most unusually, as a fact that Mrs. Kyte had lied to the court in her affidavit. Lies by petitioners in affidavits are regrettably almost common-place, prosecutions for perjury almost non-existent, and the petitioner's lies are all too often believed. So Mrs. Kyte must have been telling some real whoppers. It was found as a fact that Mrs. Kyte had coaxed and cajoled her husband, whom she knew suffered from a depressive illness made far worse by her affairs with other men, to commit suicide and had mocked him mercilessly and relentlessly when he had failed to succeed. It was also found as a fact that present in her mind was the desire to inherit all his property in the event of his death. Nevertheless the court was not persuaded that her conduct was serious enough to affect her being awarded the usual lion's share of Mr. Kyte's property upon divorce. The case went to the High Court which largely upheld the lower decision. The Court of Appeal, however, did consider that the conduct was sufficiently bad to be taken into consideration and so made an adjustment to the amount of money and property that Mrs. Kyte would get from the divorce. But it was not a very substantial difference and Mrs. Kyte went away gleeful – though perhaps less so than if her original plan had succeeded.

There is thus much for wives to play for in the divorce stakes. The fairly recent decision of White v. White even went so far as to say that the normal starting point was for the wife to get at least half the assets even if the husband were fabulously rich. The reality is that if the family are not rich, the wife gets very much more than half because, it is said, she will have the greater need since she gets the children. And if, later, there is a change of circumstances so that father cannot afford the sums awarded or even if the court reverses the custody arrangements so that the children reside with him, the prospect of over-turning the decision to give the wife most of the assets is slim.

A common pattern emerges in many cases which runs something like this: the wife falls out of love with the husband and into love with another. She provokes an incident with her husband so that he rails against her or perhaps is even foolish enough to assault her. She runs to the court and obtains an ex parte injunction – that is without notice to the husband. She is, of course, believed even if she is lying upon her oath. When the husband is informed and comes to court the matter is already a fait accompli. He will have to move out and is already on the wrong foot for the later proceedings. He will be advised not to contest the divorce and to save his energy for the fight over the children whose residence will determine what happens to the property which he has worked so hard and so long to obtain for the benefit of his family. If the children are young there is little likelihood of his being awarded residence of them so the wife will get the lion's share of the assets, including, of course, the house. He will get a deferred charge, say 35 per cent, over the property, redeemable when the last child has finished full time tertiary education. He will have to pay maintenance for the children and possibly also the wife. This all takes on average 14 months by which time both parties will have been passed through a mincer and will cordially detest one another with a burning fierceness. Added to that the husband will be burning with a profound sense of injustice. Thereafter, there will be endless battles over his contact with the children and, unless he is determined and strong, he will gradually be shut out of the children's lives by a wife who no longer wants him to be part of her or their life.

When he attends at the former matrimonial home to collect his children for the short time he is allowed to see those same infants whom he once bathed, put to bed, read stories to, cuddled, worked and strive for and whom he still deeply loves, he may well be greeted at the front door of the home he perhaps brought to the marriage and certainly worked hard to pay the mortgage upon, by the mother's boyfriend for whom she initiated the divorce. He may well say to the husband — from the front door of the house — that the children are sick and cannot see him or do not want to see him or even "push off, mate, we don’t want you around here anymore". Is it any wonder that the husband leaves boiling with rage or, though such will simply worsen his fate, that he foolishly allows himself to lash out at the usurper boyfriend?

All of this adds up to a considerable financial incentive to women to divorce their husbands. Many of the world's richest women became so as a result of divorce.

Is it any wonder that men are reluctant to marry? Is it any wonder that there is a shortage of eligible men for girls to marry? Is it any wonder that seventy-five per cent of divorce petitions are filed by women?

Do they do so chiefly because they are the victims of domestic violence or abuse? No. Not usually. They often do so because this is a financially rewarding way of getting rid of a husband with whom one is now bored. Often enough the domestic violence is committed by women against men. And women's domestic violence is often much more lethal involving lethal weapons.

The situation is little short of a national social disaster. And over 40 per cent of marriages now end in divorce.

A recent case in the High Court involved a boy of 11 running away from home, he and his three siblings having made it abundantly clear to the Court and Family Reporter ("C.F.R.") (as so often, a woman) that they wanted to live with their father. The C.F.R. was asked to report orally to the court having seen the children with the mother for one hour and not with the father. She accused the father of manipulating, abusing and poisoning the children against the mother, despite the fact that there were reports two years earlier that indicated that the elder children were consistently saying they wanted to live with father.

The judge, as so often, adopted the view of the C.F.R., and suspended all contact with the other children, which greatly exacerbated their anguish. He then ordered the father to return the runaway boy (he and his father were living with the boy's aunt and uncle) to the mother which the father was unable to do, the boy being determined not to go back to mother. The judge ordered the court tipstaff to collect the boy but he could not do so because the boy refused to go with him. The mother applied to commit the father to prison for contempt of court and during the contempt proceedings the judge secretly sent the tipstaff again to get the boy, unbeknown to either father or mother.

The boy would not shift and the tipstaff — very unusually and seemingly on the judge's order — smashed down the boy's door with an axe and heavy boots and took the boy away by force. The tipstaff advised the judge that the boy would still not go to his mother and that it would not be possible to force him. The judge then made an order to ward the boy and also to place him in Local Authority care. That was a mistake as the order was unlawful. The judge later had to rescind his order, but that did not prevent him from making a finding of contempt against the father for failing to return the boy to his mother, even though the tipstaff had been unable to do so. The contempt order contained errors, more-over. This, however, did not prevent the Court of Appeal from refusing to grant permission to the father to appeal the order. It is almost impossible to appeal Children Act orders. Judges have the very widest discretion. Lawyers are at risk of having to pay all the costs personally if they appeal without almost water-tight grounds. Lord Justice Thorpe said that the orders appealed were no more than part of the history of the case now, even if they were illegal. Fortunately, the boy and his father have a remedy under the European Human Rights Convention and are proceeding against the Lord Chancellor as the judge's employer.

In the meantime, the younger children could not see their father and the elder two were now also threatening to run away to their father. Reports were ordered and the experts studiously sat on the fence, none of them really prepared to say that the whole affair was an outrage. The Local Authority, however, did eventually foster the eldest boy to his aunt and uncle whom the judge had been at pains to keep the boy away from. Later the Local Authority advised that the boy should reside with his father — a direct reversal of what the C.F.R. had said and the judge had ordered. Still the other experts continued to sit on the fence.

However, nearly a year after the boy had run away, the case came before a different High Court judge and she (yes, a lady judge) having heard evidence over four days finally ordered joint residence of the younger children, they to live with father during the week. A small victory for common sense but at what cost to those children? And still the children's guardian did not think this was best for them and the mother's solicitor was — and is — still saying that the first judge's plainly bizarre rulings and orders were correct and should not have been departed from.

So great is the institutionalised sexism in the British family court system that there will be many, many commentators who will say that the children should remain with mother despite all. There are none so blind as those who will not see. It remains to find out whether the Human Rights action will succeed. Will the judge's actions be censured? Unfortunately one may doubt it, despite the abuse he has occasioned to those children. And he claimed to be pursuing his duty to make the children's welfare paramount. Yes, really! If it were not a potential contempt of court some might even call him a blundering nincompoop. And yet there are many who out of prejudice would say he was right. But perhaps the system is full of blundering nincompoops. One might be forgiven for thinking so.

What hope then for the future? Well, there are hopeful signs of change. There have also been some recent decisions, including the one just mentioned here, where joint residence is being taken more seriously. Hitherto that was not considered a serious option if the mother opposed it. Now it can be ordered against her will and sometimes is.

The phenomenon of mothers simply refusing contact to fathers is widespread but now the courts are threatening short-term prison sentences for really persistently refusing mothers. Hitherto, mothers could endlessly flout orders and almost never be fined or sent to prison, whilst fathers who flouted orders could expect six months or more in prison.

The media are taking more interest in the plight of fathers and children deprived of their fathers, and the public campaigns of men's groups are beginning to have some effect. The consensus in the legal profession and social services and among other experts is still biased against fathers but now some of the judges are beginning to realise that the system is skewed and institutionally discriminatory against fathers. We can but hope that more progress to restoring a more sensible balance will be made if not for the sake of fathers at least for the sake of the many, many children who are being deprived of their fathers by reason of system bias and the use of the children as a tool of manipulation by some mothers against their ex-husbands.

Given that family breakdown leads to crime, housing shortages, substantial increases in benefit and welfare costs and a huge drain on public resources, the outcome inevitably affects us all.

National Observer No. 63 - Summer 2005