The importance of both parents in minimising the exposure of children to Adverse Childhood Experiences (from the recently issued 2018 “Report 1: Mental Illness – Welsh Adverse Childhood Experience (ACE) and Resilience Study”)
I’m hoping well informed readers might point me to better data than I deploy here. Let me know.
- The 2008 Study of Hunt & MacLeod
- Lawyers’, Judges’ and Court Officers’ Opinions
- The 2015 Study of Harding and Newnham
- What Proportion of Separating Couples Apply to Court?
- Actual Contact Outcomes
- Financial Issues
- Who Is Biased?
It is not only fathers’ groups, but also the public in general who will readily agree that fathers get a rough deal from the family courts. And yet, in 2015, a report funded by the Nuffield Foundation was published, authored by academics from the Universities of Warwick and Reading, for which the associated press release was titled, ‘study finds English family courts not discriminating against fathers’, (Maebh Harding and Annika Newnham, 2015). The press picked up the story and headlines followed such as ‘Anti-father court bias is a myth’, (Gibb, 2015), ‘Men are treated fairly when trying to get access to their children in courts, study says’, (Dutta, 2015), and, ‘No anti-father bias in family courts, research finds’, (Smith, 2015). These headlines are motivated by the report’s findings, such as,
‘…the County courts showed no indication of gender bias in contested cases about where the child should live. Contact applications by fathers were overwhelmingly successful.’
‘The County Courts actively promoted as much contact as possible even in cases of proven domestic violence, often combined with welfare concerns or strong opposition from older children.’
Dr Harding is quoted in the publicity release as saying,
‘Whilst it’s true that mothers were usually the primary care giver in contact applications, this was simply a reflection of the social reality that women are more likely to take on the role after a relationship breakdown. But there was actually no indication of any bias towards mothers over fathers by the courts; in fact we established there was a similar success rate for mothers and fathers applying for orders to have their children live with them.’
Are we to conclude that all those fathers who, over the last 40 years, have complained of being unfairly estranged from their children, are just making it up? I review the Harding-Newnham report below, after also reviewing an earlier study by Joan Hunt and Alison MacLeod, 2008. I also take a look at what limited data there is on actual achieved contact.
Before proceeding, there is an important matter to bear in mind, to which that last point alludes. The issuing of a court order does not guarantee that it is obeyed. The studies by Harding & Newnham and by Hunt & MacLeod reviewed here were able only to count the orders, of various types, produced by the courts. Whether the contact ordered, or the extent of contact ordered, was actually forthcoming is another matter entirely. It may be that the chief criticism one could bring against the family courts is not so much their bias, but their inability to influence people’s behaviour – and their toothlessness in enforcing their own orders. But I get ahead of myself. These issues are explored here. But a warning: before we blithely conclude there is no bias against fathers on the basis of court orders, there are a number of factors to which we should be alert and which may be elided in some studies,
- Does a bias in outcomes originate from societal norms, and the initial status quo, rather than from the courts?
- What is the extent of contact ordered? Is it what was requested, and, if so, was a modest request conditioned by societal norms and expectations?
- Is the court order obeyed, or does the resident parent frustrate contact? Does the court enforce its own orders?
- How long does it take for a court ruling to be made, from the time of separation? If this is the order of years, as is common, has the non-resident parent’s relationship with his/her child been disrupted beyond repair?
- Do the studies elicit the experience of the parents themselves?
Turning now to the earlier of the studies I wish to review.
In 2008, a report was published by the Ministry of Justice Family Law Division, ‘Outcomes of applications to court for contact orders after parental separation or divorce’, authored by Joan Hunt and Alison MacLeod of the Oxford Centre for Family Law and Policy, Department of Social Policy and Social Work, University of Oxford. The study was based on a sample of 308 files covering cases heard in all three tiers of court: the family proceedings court, county court and high court. The criteria for selection were a) that there was an application for a contact order, b) that the applicant was a parent and the child was living with the other parent, c) that the application was made in 2004 (the latter requirement giving sufficient time for most cases to have ended in time for publication in 2008). Where more than one child was involved in a case, one child was selected (randomly) as the index child on whom the data to be collected would focus. Interviews were conducted with magistrates, solicitors and other legal advisors, and Cafcass officers. (Cafcass is the Children and Family Court Advisory and Support Service). Interviews did not address the specific cases studied. No interviews with parents were carried out.
Of the 308 sample cases, 60% involved a single child, mean age 4.5 years (mean age of all children 5.5 years). The vast majority of children (279; 91%) lived for most or all of the time with their mothers; with 23 (7%) living with their fathers. Four children had recently temporarily changed residence (three from their mother and one from their father) and two appeared to be in a de facto shared living arrangement.
That 91% of children were living with their mother at the start of the proceedings is of central importance. It will be seen that the operation of the family courts is such that the initial status quo is the dominant factor in influencing the final outcome. To pre-empt our conclusion, the bias in the outcomes for fathers may not be so much a bias in the operation of the family courts as it is the intrinsic bias in society, and hence a bias in the status quo at the start of proceedings.
The average age of the fathers in the sample was 34, but the range was enormous, from 17 to 58. Nine were under 21 at the point they brought the application. The mothers were on average slightly younger (mean 31) but again there was a wide age range (18-50), with 14 being less than 21.
In over half the sample cases (162 of 308; 53%) the parents were not married to each other, with 116 (38% of 308) having cohabited. In almost half of cases where information was available, the interval between parental separation and the court proceedings exceeded two years (46%, 116 of 255); just over a fifth (56; 22%) had separated within the previous six months. Bear in mind the significance of a delay in the order of years in the life of a child under 5.
Applications were almost all (289; 94%) brought by the non-resident parent, typically the father (265 of 289; 92%) although there were also 24 cases brought by non-resident mothers (24 of 289, 8%). More than half the non-resident parent applicants (156 of 289; 54%) were also seeking other orders, typically a parental responsibility order (107 of 156; 69%), with 49 seeking sole or shared residence (31%). It is worth emphasizing at this point the bias that already exists before the courts begin to operate. The de facto position is that about 91% or 92% of non-resident parents before proceedings commence are fathers. Fathers are on their back foot from the start, a position of disadvantage from which they will (statistically speaking) never recover.
Another disadvantage, and a most egregious one, lies behind the large number of ‘people’ applying for parental responsibility orders. None of the 107 applicants for parental responsibility orders will have been mothers, because mothers automatically have parental responsibility: but unmarried fathers do not. Entering the court proceedings without the initial benefit of having legally recognised parental responsibility can only put the father at a significant disadvantage, and this is a disadvantage encoded in law. But perhaps this is less significant than one might imagine, the report noting that,
‘Somewhat surprisingly, there was no association between whether the non-resident parent got face to face contact and whether the parents had previously been married, nor even between whether they had ever lived together. Those who had been previously married, however, were more likely than those who had not to get staying rather than visiting contact (57% compared to 47%)’
Where information was available, 38% of resident parents (109 of 286) were known to have been opposed to any face to face contact, with a further 15% (44) wanting supervised contact only, i.e., a total of 53% of resident parents were opposed to any unsupervised contact. An additional 11% of resident parents were resistant to ‘staying contact’, i.e., overnight stays with the non-resident parent. We will see that the initial position of the resident parent is the most significant factor in the contact outcome for the non-resident parent.
Consistent with other evidence, Hunt and MacLeod observed that, ‘in exactly half the sample cases (154 cases of 308) allegations of domestic violence perpetrated by the non-resident parent had been made at some point’. Note the distinction between allegation and fact.
The outcomes in terms of court orders (as opposed to what may actually have transpired) were given by Hunt and MacLeod as follows,
- Where outcomes were known (286 cases), 49% resulted in “staying” orders, i.e., staying overnight at the non-resident parent’s home; 20% resulted in orders for unsupervised visiting; and, 31% resulted in orders for supervised or conditional contact, indirect contact, or no contact at all. Indirect contact refers to contact by ‘phone, letter, email, etc., but not face-to-face. No contact at all was ordered in 14% of cases.
- The number of cases in each outcome category are displayed in Figure 1, which distinguishes according to the resident parents’ initial position on contact. Where the court order was for no contact at all, or for indirect contact only, this resulted overwhelmingly from the resident parent being opposed to any form of contact. Where the court order was for staying contact, this originated mostly from resident parents having no initial objection to it.
- Where staying was ordered, the ordered frequency of overnight staying was: at least weekly 30%; fortnightly 59%; monthly 11%. The number of overnight stays per instance was one (45% of cases) or two (43% of cases) or three (11% of cases). In these cases where staying contact was ordered, non-staying visits may also have been ordered, though in 79% of cases this was only one or two days per fortnight. In terms of total hours contact, staying plus non-staying, this amounts to between 25 hours and 72 hours (i.e., between 7% and 21% of the time) in 76% of cases. Recall, this is the time awarded by the courts, not necessarily what transpires.
- Where the court order was for unsupervised visits, the number of hours contact per fortnight was far smaller than when staying contact was ordered, on average just 10.3 hours per fortnight. The range is broad, with any number of hours from just 3 hours per fortnight to 20 hours per fortnight being almost equally likely (see Figure 2). Again recall, this is the time awarded by the courts, not necessarily what transpires. These are the so-called McDads, whose contact with their children is barely sufficient for a visit to the park and a meal in McDonald’s once per fortnight. In terms of having a fighting chance of maintaining a meaningful long-term involvement in your child’s life a staying contact order must be the objective.
- Applicants for a staying order of both sexes were comparably successful: 100 being granted out of 124 fathers applying, and 10 being granted out of 12 mothers applying. Hence, 91% of staying order applications were granted to fathers (the same as the proportion of non-resident parents who were fathers).
- In almost half of cases in which the non-resident parent had come to court to achieve some form of face to face contact (128 of 269; 48%) the outcome fell short in some respect of what the applicant had originally sought. 85 (32%) did not achieve the type of contact they had initially sought (56 failed to achieve face to face contact; 25 got visiting contact rather than the staying contact they had sought; 4 got only supervised contact). 43 (16%) achieved the type of contact sought but not the quantum desired, i.e., less frequent overnights or less frequent of shorter duration visits.
Figure 1: Court Ordered Contact Outcomes by Resident Parents’ Initial Position – click to enlarge
Figure 2: Contact Hours Awarded Per Fortnight in Cases Where Unsupervised Visitation Has Been Ordered (not overnight staying) – click to enlarge
Two factors most influence the outcome for the non-resident parent. The first is the initial attitude of the resident parent, the second is whether there is a claim of a “serious welfare issue” against the non-resident parent. These “serious welfare issues” include allegations of domestic violence, child abuse, neglect, drug or alcohol abuse or mental illness. More than four in five cases which ended with no face-to-face contact involved such issues.
In contrast, where serious welfare concerns were not raised, 90% of cases (112 of 125) ended with either staying (65%) or unsupervised visiting contact (25%). Hence, whilst allegations of domestic abuse do not necessarily prevent staying or unsupervised contact, these results do indicate a strong correlation between failing to gain such contact and a suspicion of ‘welfare issues’ against the non-resident parent, especially allegations of domestic abuse. What the data do not reveal is whether the refusal by the courts to order face-to-face contact aligns with a genuine risk, or with a vexatious allegation.
It is worth noting in that context that “findings of fact” in regard to allegations of domestic violence are rare. To quote Hunt & MacLeod,
‘Asked why finding of fact hearings are not listed more often both Cafcass officers and solicitors largely attributed this to the courts’ reluctance.
(Quote from Judge): We do our best to avoid them (findings of fact) if at all possible because they are totally unproductive and unhelpful, on the whole. It just raises the temperature. And how do you decide whether he hit her or not when it’s her saying one thing and him saying the other?’
As regards the significance of the initial position adopted by the resident parent, this is illustrated by Figure 1.
On the issue of the time it takes the courts to make an order, we read the following in Hunt & MacLeod,
‘…few of our sample cases were resolved quickly. The average duration was almost 11 months. Over a third of completed cases (35%) took more than a year and 6% more than two, the longest case having been continuously before the courts for four years…..the average duration of cases which had not completed was 35 months, the shortest having started 29 months previously, the longest 43.’
‘Some of the longest cases in the study were those where the resident parent had been initially opposed to any contact but the outcome of the proceedings was that this was expected to take place. Over half these cases (54%) took more than 12 months….Where the resident parent raises concerns about the safety of the child with the non-resident parent then those concerns have to be investigated. Fifty-eight per cent of such cases took more than 12 months.’
Perhaps there has been an improvement on these times in the last ten years. The Family Court Statistics Quarterly, January to March 2018 indicate in the first quarter of 2018 a mean time from start to completion in Private Family Law of 26 weeks (median 20 weeks).
However, it must be borne in mind that these times are only the time taken from the point of application to a first order. It is common for parental separation to have occurred many months, even years, prior to the application being made, as illustrated by Figure 3 (from Hunt & MacLeod’s Appendix Table 6). In addition, in some cases, there may be later enforcement applications, introducing further delay (see section 5 and Figure 4).
I cannot do justice to the full set of quotes reported by Hunt & MacLeod. However, here are a selection relating to the influence of the resident parent on the proceedings.
- ‘Where we are highly ineffective are cases where the resident mothers take the view that they don’t want contact to happen. And in those cases it is very, very difficult.’ (Judge)
- ‘There are certain resident parents and they’re quite a big group I guess, who have the attitude that they’re looking after the child and their relationship with the child is considerably more important than the relationship with the other parent. And therefore contact has a small part to play in the child’s life, it’s of relatively little importance and more of a nuisance than a benefit. That’s a fairly common attitude.’ (Cafcass officer)
- ‘I do think that most parents want what is best for their child but they just don’t recognise that it is helpful to a child to grow up knowing both parents.’ (Judge)
- ‘Quite often we find that in contact cases the parents are just using the child as a pawn, and especially the resident mother because it’s just a way of getting back at a partner she no longer has a relationship with other than through the child and it’s the only way they can do that.’ (Magistrate)
- ‘They’ve got a new man and they want their happy family and father interferes with that. That’s relatively common.’ (Magistrate)
Figure 3: Interval between parental separation and application to the court – click to enlarge
Figure 4: Enforcement Cases: Interval between initial order and application for enforcement – click to enlarge
I turn now to the study by Maebh Harding and Annika Newnham, 2015, funded by the Nuffield Foundation. This is the study which provoked the press headlines quoted at the start of this article. The study was based on a sample of cases which they describe as follows,
‘The research is based on document analysis of a retrospective sample of 197 case files from the County Courts. We examined case files from five different County Courts in England and Wales…..The sample was limited to Section 8 application cases which were disposed of by final order in a six month period between February and August in 2011.’
Here “Section 8” refers to the Children Act, and is the section which relates to child arrangement orders, parental responsibility orders, and associated orders, (UK Government, 1989)
The authors selected just under half the relevant “Section 8” cases from the chosen courts over the six month period. They do not state how that selection was done, or claim that the sample is either representative or random. Instead they write, rather disconcertingly,
‘At the time of selection there were 210 County Courts in the UK. It should be noted that our findings about the use of different Section 8 orders and the typical time patterns orders are not statistically representative of the general practice in 2011 but instead give us an idea of the different types of solutions being used in these five courts in 2011 in a range of circumstances.’
It is difficult to be certain what this ungrammatical sentence means, but it appears to admit that their sample is not representative. There are other reasons to suspect that this is the case, as we shall see.
Of the 197 cases selected by Harding & Newnham only 174 related to parents, and the rest of the report focuses on those.
In common with other sources, Harding & Newnham note that 50% of cases involved allegations of domestic violence (40% against father, 2% against mother, 8% against both). They further note that, of the 86 cases in which allegations of domestic violence were made, the LASPO evidential requirements were satisfied in 45 cases (52%). (See my blog Legal Aid and Domestic Violence in the Family Courts for an explanation of LASPO and the associated evidentiary requirements for domestic violence). Noting that the LASPO requirements are minimal, that nearly half of such allegations do not satisfy them may have a bearing on their likely validity.
The sample of cases addressed by Harding & Newnham include at least 30 applications by mothers for sole residency, and at least 32 cases by fathers for sole residency (Harding & Newnham section 2.2). It is striking, and unexpected, that these two figures should be almost equal. Father’s applications for sole residency were 18% of the total cases considered (32 out of 174), and mother’s applications for sole residency were 17% of the total. One would expect a substantially greater number of sole residency applications from mothers, an expectation confirmed by Hunt & MacLeod’s sample which included just 9 cases of fathers seeking sole residency (3% of 308), compared to 44 mothers seeking sole residency (15%). This suggests that Harding & Newnham’s sample has an uncharacteristically large proportion of cases in which fathers were seeking sole residency.
Another indication that Harding & Newnham’s sample may be unrepresentative relates to where the child was living at the time of the court application. Their table in section 2.6.1 indicates the child was with the mother in 126 cases (76%) and with the father in 39 cases (24%), ignoring the few indeterminate cases. This contrasts with only 9% of cases involving residency with the father at the start of proceedings in Hunt & MacLeod’s sample.
This concern that the child’s residence at the time of application may indicate the unrepresentative nature of Harding & Newnham’s sample relates particularly to fathers’ applications for sole residency. Of the 32 such applications, to quote section 2.8.5 of Harding & Newnham, ‘Dad was the pre-application status quo primary caregiver in only 7 of the 32 applications by fathers for residence….However, in 20 applications the child was in the care of the father at the time of the application’. This is an extraordinarily high proportion of residence with the father at the time of application (63%), compared with typical cases (9%). Clearly, these 32 cases are mostly self-selected and relate to a father with an unusually great chance, or need, of winning sole residency.
It is worth clarifying how Harding & Newnham can claim that fathers were the “status quo primary caregiver in only 7 of the 32 applications by fathers for residence” when in 20 of those 32 applications the child was living with the father at the time of the application. This is explained simply by Harding & Newnham defining the “status quo primary caregiver” as “the main carer of the child for over one year”. The peculiar circumstance that only 7 of the 32 fathers are labelled as “status quo primary carers”, and yet 20 of the 32 cases involved children living with their fathers at the time of application, results from many children having very recently moved residence. Specifically we read,
‘In 16 cases the child had been living with the mother and was now with the father. In 2 cases the child had previously lived with the father and was now with the mother. In 10 of these transfer cases the transfer had occurred because the child had been placed with the other parent following social services or police involvement. In 8 cases the change was because one of the parents had retained the child following contact. Most of these cases also cited child safety concerns as the reason for retaining the child.’
Consequently, the claim made by Harding & Newnham that, “fathers’ applications for residence were mainly to change, rather than protect, the status quo or to reflect a recent change in care” could easily be misunderstood – largely as a result of the particular usage of the term “status quo”. In fact, 20 of these 32 applications by fathers for sole residency were in order to consolidate the arrangements which prevailed at the time of application, and so were not ‘mainly to change’ existing arrangements at all.
A further concern that Harding & Newnham’s sample may not be representative relates to the proportion of their sample which involved ‘serious welfare issues’ excluding domestic violence. More of these issues were raised against mothers than against fathers. Such issues were raised in 79 out of the 174 cases (45%), of which 30 were against fathers (17%), 34 against mothers (19%), and 12 against both (9%). Harding & Newnham themselves note that, as regards the 32 applications by fathers for sole residency,
‘What stood out from these cases was how many of the fathers’ residence applications featured quite serious fears about the children’s safety (i.e., from the mother), which were usually shared by social workers or healthcare professionals. If we look at the reasons given by the fathers in the 32 applications for sole residence, 8 mentioned local authority involvement, 7 claimed that Mum was incapable and 3 were made to protect the child from the mother.’
There appears to be an abnormally large proportion of mothers deemed to be a risk to their children in this particular set of 32 cases.
Recall the press headlines following publication of Harding & Newnham’s study in 2015, quoted above. The publicity release by the (Nuffield Foundation, 2015) gives a key conclusion as,
‘There was actually no indication of any bias towards mothers over fathers by the courts; in fact we established there was a similar success rate for mothers and fathers applying for orders to have their children live with them.’
This claim is based on the number of orders made for sole residency, namely 40 for mothers and 24 for fathers (Harding & Newnham section 4.2). One could reasonably argue that these figures do not support the claim (40 is significantly larger than 24), especially in view of the number of applications for residency by fathers in their sample exceeding the number by mothers.
But the more serious objection is the apparently unrepresentative nature of their sample cases. The preceding observations have indicated that Harding & Newnham’s sample, (i) included an abnormally large proportion of applications for sole residency by fathers, (ii) that these applications involved an abnormally large proportion of children who were already resident with their fathers at the time of the application, and, (iii) that there were an abnormally large number of mothers in these 32 cases against whom there were serious child welfare concerns.
Consequently, Harding & Newnham’s highly publicized claim that, “we established there was a similar success rate for mothers and fathers applying for orders to have their children live with them” must be ruled as lacking valid substantiation as a conclusion applicable in representative samples.
The principal failing of the family courts is the almost total lack of enforcement of their own orders.
I emphasised earlier the important distinction between what the court orders, and what happens in reality. It is common for the resident parent to frustrate, or deliberately obstruct, fulfilment of orders for contact by the non-resident parent. If the non-resident parent has spent years getting to the point of having an order for contact, having this flouted by the resident parent will understandably cause great irritation. But loss of temper will avail the non-resident parent nothing. Unfortunately, little else will either. At the start of the process the resident parent holds all the cards. At the end of the process the resident parent still holds all the cards – largely due to lack of enforcement of court orders.
The Family Court Statistics Quarterly, January to March 2018, Tables 3 and 4, provide data for the number of children involved in applications for private law enforcement orders, and the number of children for whom such orders are made. The ratio of the latter to the former is plotted against year in Figure 5. In 2011 only 2% of enforcement applications actually resulted in an enforcement order: by 2018 this had decreased further to just 0.2%. In the first quarter of 2018, 1813 applications for enforcement were made, just 3 were ordered. Between 2011 and 2017 the number of applications for enforcement more than tripled, from 2078 to 6832. But an enforcement order almost never emerges from the application, and this is now almost literally ‘never’.
In 2011, the number of enforcement applications was 5% (2%) of the number of contact applications (orders); by the first quarter of 2018 this had increased to 17% (10%). This provides an indication of the minimum extent to which court orders for contact are being flouted. (I have made the assumption that enforcement orders relate overwhelmingly to contact orders).
Of the sample cases studied by Hunt and MacLeod (2008) we read,
‘Thirty applications by non-resident parents (10%), were brought, at least in part, because of the resident parent’s alleged non-compliance with an order (27)…..Most of the applicants in these cases (28) (and all those seeking penal notices) were non-resident fathers.’
It is not clear what we can conclude from this regarding the percentage of cases for which court orders are obeyed, because it is likely that many disappointed non-resident parents simply do not raise an enforcement application. Similarly, it is not clear if the frequency of disobeying court orders is increasing, or whether non-resident parents are becoming more inclined to make enforcement applications. If the latter, one wonders why because, as we shall see, there appears to be no benefit – quite the opposite.
Figure 5: Enforcement Orders Granted as a Percentage of Enforcement Applications
If an enforcement order does not result, what does happen after an enforcement application is made? In other words, what happens when a non-resident parent complains to the court that their own order is being disrespected? The answer is quite shocking if Hunt and MacLeod (2008) are any guide.
The best you can realistically hope for is that your original order is reinstated. In only 2 of the 30 cases of enforcement applications in Hunt & MacLeod’s sample was a penal notice issued. In 4 cases the request for a penal notice was declined. But worse: in 14 of the 30 cases, even the original order was not reinstated. Instead a new order was issued for reduced contact. So, in about half of cases where a resident parent has refused to abide by the terms of a court order, and the non-resident parent has brought the matter formally to the attention of the court, the court responds by “rewarding” the resident parent with reduced contact by the non-resident parent. In Hunt & MacLeod’s sample there were 19 initial orders for staying contact which were later subject to enforcement applications. The result was eight of these fathers had their initial staying order reduced to a non-staying order. To quote Hunt & MacLeod,
‘In all, we calculate that 18 parents (62%) might consider themselves disappointed with the outcome of their application for ‘enforcement’, including 14 who failed entirely.’
These disappointed “parents” were all non-resident fathers.
Hunt & MacLeod conclude,
‘The court is ultimately impotent in the face of implacable hostility on the part of either resident parents or children and non-compliance with court orders’.
The de facto position is that resident parents are a law unto themselves. The greatest problem with the family courts is their impotence in dealing with belligerent resident parents.
Hunt & MacLeod (2008) include many quotes from involved professionals. I reproduce a selection relating to the issue of enforcement below (there are other comments which may express differing opinions, see the report itself for the full set of quotations). One of the interesting things about these quotes is that, rather than use the cautious terminology “resident parent”, as I have done, they generally simply refer to the mother.
- ‘I suspect that your data will suggest that there is a reasonable amount of contact for fathers; that’s what I would suspect. But what we get back in court is the reality that mothers don’t cooperate and that’s the biggest area where you get the argument that you don’t get enough contact.’ (Magistrate)
- ‘The main problem is not getting a contact order but enforcing it if it is breached.’ (Solicitor)
- ‘I think the system is quite good at effecting an order and pushing people together and trying to get them to agree to try to compromise, the system is quite good at that. But the number of occasions when you come out of court with an order and six months later the client is back saying well I’ve got the order but it doesn’t happen. In common with all other aspects of British law I think the enforcement side of all civil justice is very poor. In the bad cases you go round the loop again and again.’ (Solicitor)
- ‘It was really sad. An old client came a couple of weeks ago for another reason. We’d fought tooth and nail for four years, everything was thrown at us, sexual abuse allegations, neglect, you’re not committed. And we got contact. Mother then moved away, never turned up and by then he’d lost the will and never came back to enforce the order. I said to him it doesn’t have to be that way, come back and I’ll take it forward. But he hasn’t come back.’ (Solicitor)
- ‘There was one particular case where we did take enforcement proceedings and mother started playing ball. But the client has got back in touch with me about another matter and I know contact isn’t happening, so although mother started to comply when we took the proceedings she’s not now. But I think he’s just given up and thought ‘it’s such a battle’.’ (Solicitor)
- ‘The enforcement side is dreadful. There is a general perception among nonresident parents that ‘this isn’t worth the paper it’s written on’.’ (Solicitor)
- ‘We are supposed to have a system where ultimately a parent who has physical possession of the child can be sent to prison but of course it very rarely happens and my experience is that a lot of non-resident parents go to court, get themselves an order, mum doesn’t comply with the order, they come back to court to try and enforce it, and eventually they give up.’ (Solicitor)
- ‘You do feel that in certain circumstances the courts are timorous. I don’t think the courts feel that they have the power to do anything about a mother (who fails to comply). There are a lot of fathers being advised just to give up if the mother has remained completely and implacably hostile.’ (Solicitor)
- ‘I have one case at the moment where the court needs to bite the bullet and put a penal notice on – ‘thou shalt do this Mrs X’. But the court doesn’t like doing it. The trouble is the court doesn’t like saying you’re out of order and you need to face up to reality and have a more reasonable approach. In the years we were before the court it didn’t matter what they said to this mother it never happened. I think they could probably have taken a stronger stance with mother. There was no prison mentioned, no fine mentioned, they said it wouldn’t be realistic to change residence. There was nothing really said to mother that was strong enough for her to do anything.’ (Solicitor)
- ‘Penal notices. I think sometimes they are not robust enough on that. They could be imposed more, they are a threat. And it may be sufficient for a parent to realise that they’ve got to take it in hand and they’ve got to encourage their child to have contact and they’ve got to also comply with the court orders. I had this case where I asked for a penal notice; it’s been going on for 10 years- and still the court wouldn’t do it.’ (Solicitor)
- ‘I’ve never seen any court fine anybody. There was a phase a few years ago where (X) court sent the odd mother to prison but I think the general accepted position at the moment is that they won’t do it.’ (Solicitor)
- ‘The best way I’ve ever seen a contact order enforced was where the magistrates fined the mum by mistake, because they thought that they could. And I was acting for the mum and we appealed it, and we were successful on appeal, but that’s the only time I saw that mum, I know it’s my client, discuss contact sensibly, because she’d lost money.’ (Solicitor)
- ‘I’m not the sort of person who would be saying mum should be sent to prison, but on the one occasion that a mum did she purged her contempt and within a couple of days she was out of prison and contact worked from then on.’ (Solicitor)
- ‘She hasn’t got two beans to rub together so a fine’s impractical. Of course, he doesn’t want to send her to prison, it’s the last thing he wants.’ (Solicitor)
- ‘A financial penalty affects the child. Committal affects the child. I do wonder whether the suggestion that they might transfer residence might help, but having said that I’m not sure that would help either, because if that destabilises the child, their home life, what they’re used to, their schooling, their friends…?’ (Solicitor)
- ‘A lot of fathers don’t actually want the day to day care of the children so if your only sanction is you lose the children, how many fathers actually want it? There are some out there, my client today would gladly take the children. A lot of them I don’t think would cope, so you have a toothless regime out there.’ (Solicitor)
What proportion of divorcing or separating couples go to court for child arrangement orders? There is a mythology that the figure is 10%, i.e., that 90% of couples make private arrangements without involving the courts, for example see Maebh Harding and Annika Newnham. But it appears from MOJ data that the proportion of couples having recourse to the courts is far higher.
The Family Court Statistics Quarterly, January to March 2018 gives the following data for 2017,
- Private law Children Act cases 50,651
- Children involved 76,780 (hence 1.52 children per case)
- Divorce, annulment, judicial separation cases 110,010
- Number of children involved in contact applications 44,267
- Dividing the above number by the average number of children per case gives 29,123 cases involving at least one contact application
The number of divorces, annulments and separtions indicated above is reasonably close to the number of divorces in 2017 given by Office for National Statistics, namely, 101,669. However, not all these involve dependent children. In 2013 only 48% of divorces involved children under 16, namely 55,323 cases out of 114,720, (Office for National Statistics, 2015).
However, court orders for contact do not only relate to divorcing couples but also to previously cohabiting couples. Despite cohabiting couples accounting for less than 20% of the total number of children, the Marriage Foundation estimates that cohabiting couples account for half of all family breakdowns. This suggests that there were around 203,000 family breakdowns in 2017, but that only about 111,000 involved dependent children (under 16).
Hence, the proportion of all family breakdowns involving dependent children where recourse to the courts is made for child contact arrangements appears to be about 29,123/111,000 or about 26%. On the other hand, if the total number of Children Act cases (contact, residence, parental responsibility, etc.) is used as an indication of recourse to the courts, the proportion appears to be about 50,651/111,000 or about 46%. The “mythology” that the proportion is 10% therefore appears grossly inaccurate.
In reviewing the operation of the courts, I have emphasised the crucial distinction between what contact is ordered and what contact actually transpires. Moreover, we have seen in section 6 that about three-quarters of child contact arrangements are agreed informally by the parents without court involvement. For both these reasons, the statistics relating to court orders tell us very little about the reality of ongoing involvement of non-resident parents in their children’s lives.
Quality data on the extent of contact by non-resident parents in the UK does not currently exist. This woeful lack of quality data is the main message in the 2017 review ‘Shared Care After Separation in the United Kingdom: Limited Data, Limited Practice?’ by Tina Haux, Stephen McKay, and Ruth Cain, published in the Family Court Review. Despite lamenting this lack, the report does pull together what information is available, namely that derived from the UK Household Longitudinal Surveys (UKHLS, also widely known as the “Understanding Society” surveys) and its predecessor, the British Household Panel Survey (BHPS). Haux et al emphasise the manifold limitations of these sources. I reproduce their findings in Figures 7, 8 and 9. A few salient points are,
- 50/50 shared care applies at most in 3% of cases, and less than this according to the nominally resident parent. It has not increased between 2002 and 2014.
- There are two sources of serious sample bias. The first is that resident parents are substantially more numerous in the surveys than non-resident parents, simply because the location of non-resident parents is harder to track.
- The other sample bias is that non-resident parents who have no contact at all with their children will be less likely to respond to surveys. This is probably why the estimate by the resident parent of the proportion of non-resident parents with no contact at all (27% to 33%) is substantially larger than the estimate based on the non-resident parents’ responses (12% to 19%). This suggests that the larger estimate may be more accurate.
- Only 46% of non-resident parents have staying contact on a regular basis, and this may be an overestimate for the reasons discussed above (Figure 7). Note that this is similar to the proportion of court orders for regular staying contact identified by Hunt & MacLeod, above (49%). It is not clear, therefore, that recourse to the courts significantly improves a non-resident parent’s likelihood of achieving regular staying contact – though one must take into account that the cases coming to court are self-selected as the more problematic.
- 40% of non-resident parents have no staying contact (Figure 7), even on an irregular basis, and this is likely to be an underestimate for the reasons discussed above.
- The non-resident parent has contact once per week or more frequently in 57% to 61% of cases (non-resident parents’ data), or 38% to 47% of cases (resident parents’ data).
- The non-resident parent has contact more than once per month, but less often than once per week, in about 13% of cases.
Figure 6: UKHLS 2013/14 (reproduced from Haux et al Table 3) – click to enlarge
Figure 7: UKHLS 2009/10 (reproduced from Haux et al Table 4) – click to enlarge
Figure 8: BHPS and UKHLS (reproduced from Haux et al Table 5). I suspect the column headed UKHLS 2009-10 contains typographical errors. It’s heading should read NRP not RP, and the first row should be 3 not 37 (the percentages then add to 100%). Click to enlarge.
Does a father who was particularly involved with his child prior to separation, perhaps even the primary carer, benefit by obtaining a greater level of contact after separation? There are some who make such an implication, if only indirectly, with such disparaging remarks as “perhaps he could have taken more interest in child care prior to the divorce”. On the other hand, there is no shortage of anecdotal evidence that fathers who shared care equally with their partner, or even were the primary carer, can find ongoing contact after divorce just as difficult to obtain. On this matter, Haux et al write,
‘In sum, fathers who were more involved in their children’s care (in terms of active fathering or sole fathering) and who felt closer to them tended to engage in more frequent contact with their child post-separation and to have them for more overnight stays. Despite this, frequency of contact declines with time for both more- and less-involved fathers. We found somewhat less evidence that perceived parenting competence was linked to subsequent contact patterns, though this might be in part a consequence of the smaller sample size. Finally and importantly, none of the measures of pre-separation fathering were associated with lower chances of breakdown in contact.’
I interpret this to mean that a more involved father prior to separation tends to remain more involved after separation if contact takes place, but a father’s prior involvement in caring does not lead to a greater likelihood of contact after separation, nor does it mitigate against loss of contact.
Financial matters are beyond the scope of this brief review, but a few of the more obvious inequalities need mentioning.
There is a glaring inequality in child maintenance payments. It is surely beyond dispute that if child care were divided equally, 50/50, in all respects, then no party should be required to pay child maintenance to the other. But this is not the requirement of the UK’s Child Maintenance Service, as their on-line child maintenance calculator confirms. Instead the required payment from the non-resident to the resident parent reduces pro-rata with contact time to 50% at a 50/50 time division, rather than zero. The notional “non-resident parent” must still pay 43% of the maximum pay even if (s)he is actually caring for the child most of the time.
The reduced child maintenance payment with increasing contact time also acts as a disincentive to the resident parent in agreeing to greater amounts of contact.
On the other hand, any child maintenance received by the resident parent does not aﬀect the resident parent’s entitlements to beneﬁts (welfare) in any way. There is therefore no direct public ﬁnancial interest in ensuring child maintenance is paid. But there is a financial incentive for the resident parent to minimise contact.
A particular difficulty faces the non-resident parent after separation: the need to find, and pay for, additional accommodation now that (s)he no longer lives with the resident parent. For most people this will necessarily be very modest accommodation due simply to financial constraints (and might mean moving in with friends or the grandparents temporarily). But in order for overnight staying contact to be ordered, the court must be satisfied that the non-resident parent can offer the child appropriate accommodation. This may mean a separate bedroom. But a spare bedroom may be beyond the displaced parent’s means under these circumstances. This is a particularly pernicious constraint on separated fathers (as 90% or more of non-resident parents) and may prove an insurmountable problem. Moreover, if he can afford a place with a spare bedroom, and is receiving housing benefit (or the equivalent under universal credit) he may then face reduced benefit payments as a result (the so-called “bedroom tax”). Non-resident parents on social assistance under the age of 35 are only eligible for a “bedsit” (living with other adults) rather than a ﬂat with a separate bedroom, which may prohibit stayovers entirely. All these constraints hit low-earners especially.
Perhaps about three-quarters of child contact arrangements are made informally without involving the courts.
In about half of cases in which the non-resident parent goes to court to achieve some form of face to face contact, the outcome falls short of what the applicant sought.
The courts order staying contact in just under half of cases on which they rule. Informal arrangements outwith the courts (strictly the totality of all cases) have the same outcome; just under half involve staying contact. Typical staying orders are for one or two overnights per fortnight with one additional visiting day per fortnight. This is the extent of contact which the luckier half of non-resident parents may hope to achieve.
Equal caring, close to 50/50, occurs in at most 3% of cases, probably rather fewer, and has not increased since 2002.
At the other extreme, the courts order no contact of any sort in 14% of cases. The courts order either no contact or only indirect or supervised contact in 31% of cases. These figures compare with surveyed outcomes which suggest that no contact at all results in between 12% and 33% of cases, with perhaps the larger figure being more likely. However, one could add to this a further 9% where contact occurs only a few times per year.
Courts order unsupervised visits, but without overnight stays, in 20% of cases. The average ordered contact time under these conditions is 10 hours per fortnight. Surveys of outcomes suggest that contact less than weekly but at least monthly occurs in about 20% of cases.
Uncertainties in all these figures are huge. But the outcomes from the courts in terms of the content of orders is not obviously dramatically different from the actual (surveyed) outcomes. Assuming cases going to court are the more problematic cases, this suggests that the courts’ ordered outcomes encourage alignment with societal norms (no better, no worse). The numerical extent to which court orders are flouted is unknown, however, and so it is unknown whether the actual outcomes for cases which go through the courts fall short even of the general societal norms arising from informal arrangements.
No contact appears to be the actual outcome in a greater percentage of cases than the courts order, but this may be because orders for indirect or supervised contact ultimately lead to no contact longer term. The actual prevalence of no contact, or contact only a few times per year, may be as high as about 40%, but could be as low as 20%. The higher figure is probably closer.
So, are the family courts biased against fathers? The outcomes for non-resident parents – which term I will now replace with “fathers” – are clearly hugely inequitable. Fewer than half will achieve the arrangements which are (arguably) required for a meaningful ongoing relationship between father and child, namely staying contact. The de facto standard has become just three days per fortnight, which will include one or two overnight stays. So even the sought-for standard is inequitable, and equitable (near 50/50) cases are rare (less than 3%). The majority of the other half of cases ultimately result in no contact, or very infrequent contact, as striving Dads morph into McDads and then into so-called deadbeat Dads under the action of societal forces largely beyond their control. The longer term outcomes for the intermediate 20% of cases with their 10 hours of non-staying contact per fortnight is in need of a study in its own right.
Economic strangulation is a major exacerbating factor in constraining separated fathers’ options, particularly as regards preventing staying contact in practice, but financial details are beyond the scope of this article.
So, are the family courts biased against fathers? It may be that this is a misattribution of where the problem lies. The courts’ chief failing is their impotence. At the start of the process the resident parent holds all the cards. At the end of the process the resident parent still holds all the cards. The anecdotes from professionals demonstrate that the courts are powerless to control the behaviour of a belligerent mother. It is not clear that the involvement of the courts makes a substantial difference, one way or the other, although the data is so noisy that confidence in any conclusion is lacking. What is clear is that non-resident parents – over 90% of whom are fathers – are treated inequitably in almost all (97%) of cases.
In many of these cases the fathers may, in fact, be content. But, in an enormous percentage of cases, fathers are far from content and the outcomes have the long term effect of severing the father-child relationship. This can no longer be presented as merely a fathers’ rights issue (and hence of scant societal concern). The influence of the breakdown of the paternal relationship upon the next generation is no longer contentious. The impact of the loss of a parent is emerging as a dominant issue of social disadvantage to the child, as evidenced by the graphic which heads this post, and which I repeat below.
The importance of both parents in minimising the exposure of children to Adverse Childhood Experiences (from the recently issued 2018 “Report 1: Mental Illness – Welsh Adverse Childhood Experience (ACE) and Resilience Study”)