Written evidence from Mr Terrence White – Gender Parity UK (CFA0039)

 

HOUSE OF LORDS CHILDREN AND FAMILIES ACT 2014 SELECT COMMITTEE INQURY

 

Submission of Gender Parity UK to the Select Committee on the Children and Families Act 2014

April 2022

1.                Summary

Gender Parity UK is an association of individuals and groups working towards an egalitarian society, in which boys and girls benefit fully from a meaningful relationship with both their parents.  We welcome this review as an important process to ensure that decisions taken with the intention of making the interests of children paramount are based on the best available evidence and most successful practical solutions for the holistic benefit of the children.

Areas of concern

We suggest that the Children and Families Act 2014 (“the Act”) should be partially supplanted with revised legislation because it has not[1]:

                    durably reduced the numbers of private-law cases going to court, now at a record   high of over 55 thousand cases a year; or

                    reduced the time spent in litigation for private law children’s cases, now at a record high of 42 weeks average

and, as a result has created substantial additional harm to children arising from:

                    prolonged uncertainty, de-stabilisation, and alienation from ‘good enough’ parents;

                    many parents suffering significant economic impoverishment and chronic emotional, physical and mental stress from prolonged adversarial proceedings, which adversely affects their parenting capacity.

Analysis

In respect to Private Law Children’s Proceedings, the concerns above have arisen because:

  1.              The amendments creating §1 (2A) and (2B) of the Children Act 1989 failed to create any expectation or express desirability of equal parenting time (“EPT”), or even a preference for the children’s right to “direct contact” with their parents pursuant to Art 9.3 of the UNCRC; 
  2.              The creation of the MIAM obligation failed to first place the parties into a ‘Zone of Possible Agreement’ (‘ZOPA’, in which agreement is possible) in respect to child arrangements; 
  3.              The Act failed to align public law practices and standards with private law, so that children subject to public law are substantially better-protected against being harmed by proceedings and alienated from ‘good enough’ parents;
  4.              The Act failed to motivate the Children’s Commissioner to become involved in promoting the interests of children in policy for private law children’s matters; and
  5.              The Act failed to tackle the problems of enforceability of child arrangements, which undermines both mediated agreements and orders, and forces parties to return to court.

 

New evidence available

Since the Act, significant new, high-quality empirical studies prove that a presumption of Equal Parenting Time:

                     Benefits the children,

                     Benefits their mothers and fathers

                     Reduces domestic abuse

                     Reduces the burden on the court 

West Virginia became the latest US State to legislate a presumption of EPT in March 2022, stating in the enacting Bill:

“It is the public policy of the state of West Virginia to recognize the presumption, overwhelmingly supported by social science research, that co-equal joint custody and equally divided parenting time is in the best interest of children.”[2]

Given the current peer-reviewed empirical evidence, and the current state of affairs of the Family Court, the genuine pursuit of children’s welfare interests demands that the UK urgently enshrine a rebuttable presumption of Equal Parenting Time (EPT) in private law children’s proceedings.

Recommendations:

A presumption of Equal Parenting Time in child arrangement orders unless another arrangement is determined to be more favourable to a child’s welfare interests (i.e. a ‘starting position’ of EPT, and thereby preserving the paramountcy of child welfare interests);

An interim order upon application for private law children’s proceedings to preserve a child’s right to direct contact with both their parents during the course of mediation and proceedings – and that MIAMs is accessed only once an interim order is in place;

Where domestic or child abuse allegations are made:

Appointment of a Guardian ad Litem for the children where the allegations present a risk of significant harm to the children (to replace Legal Aid for either parent and the Cafcass Family Court Advisor);

Preserve the child’s right to direct contact with both parents until facts are found –use of supervised contact options if required;

Investigate un-proved allegations to determine whether they were made as part of a pattern of controlling and /or coercive behaviour against the accused;

The Children’s Commissioner to approve all private-law children’s policy matters, including panels advising judicial practice, Cafcass and Ministerial policy, to ensure children’s rights are respected;

Introduce a fixed penalty notice for failure to abide by Child Arrangement Orders (that is administered by the Local Authority and can be appealed for reasonableness, similar to the school truancy penalty or parking fines), as an ‘intermediary step’ before C79 enforcement, and calculate CMS on ordered, rather than performed contact to prevent perverse incentives.

 

2.                Gigantic natural experiment on Equal Parenting Time: the results are in

In 2009-11, Spain accidentally created a large-scale, naturally-controlled, longitudinal, empirically-sound experiment focussed specifically on Equal Parenting Time (“EPT”). Now the results are in:

The first study: Bargaining under Threats: The Effect of Joint Custody Laws on Intimate Partner Violence found that:

the policy led to a large and significant decrease in intimate partner violence” and “a significant reduction in female partner homicides”

The second study: The impact of equal parenting time laws on family outcomes and risky behavior by teenagers: Evidence from Spain found that:

“EPT laws reduce contentious divorces”, “increase the employment of mothers relative to fathers” and “significantly decrease risky behavior by teenagers, especially boys”

Both studies support existing observations from those jurisdictions that have already adopted a presumption of EPT.

The natural experiment was created by some provinces adopting the same EPT regime, whilst others did not, instilling like-for-like comparisons across diverse regimes over time that naturally corrected for local variabilities. In EPT regimes, the presumption was required rather than allowed. This naturally corrected for the ‘self-selection’ bias theorised to discount previous studies, in which the choice to ‘opt-in’ to EPT might select for already-agreeable parents. Spain, like the UK, already had a presumption of joint legal custody, so the observations are isolated to the specific issue of EPT. The enormous data set allowed for an unusually high degree of effect certainty, and the extended longitudinal timeframe permitted diffuse, long-term effects to materialise.

This may be compared to the investigation conducted by the ‘Family Justice Review Panel’ (“FJRP”) in preparing the ‘Norgrove report’, which consisted of seeking the views of a single Australian lawyer (Helen Rhoades), whilst disregarding the Australian Institute of Family Studies (“AIFS”) evaluation, or even Rhoades’ own significant and clear admission that:

“The AIFS evaluation suggested a picture of substantial success”.

Australia’s mandatory consideration of EPT (S.65DAA of the Family Law Act 1975) remains in force, and Australia continues to enjoy significantly better outcomes for its children, and significantly lower litigation of child arrangements, because of it.

3.                Proven Positive benefits of a presumption of Equal Parenting Time:

3.1.       Improved outcomes for Children

There is an abundance of evidence from decades of research that EPT is beneficial for children. A substantial meta-analysis in 2018 of 60 scientific studies found that equal or near-equal shared parenting provides significant benefits to children’s well-being over majority parenting, even where parents are in high conflict.[3] Grown children of divorce say they wanted to have spent more time with their fathers as they were growing up, and the living arrangement they believed was best was living equal time with each parent.[4] 80% of the British public also support a rebuttable presumption of equal shared parenting[5],[6].

The second study of the Spanish experiment found benefits of an EPT environment for children:

“Summary index 1 combines information about the incidence of seven different behaviors: binge drinking, marihuana smoking, cigarette smoking, how late at night, consumption of tranquilizers, being expelled from school last year and consumption of hard drugs. The first row in the table indicates that EPT significantly decreases risky behavior as measured by summary index 1”

“Also, our results indicate that EPT laws act as a mechanism to increase the bonds between parents and children, positively impacting the emotional development of the latter.”

The study’s authors postulate that this is because an EPT environment increases ‘father investment’ in both intact and separated families. Such a relationship is echoed in ‘The report of the Commission on Race and Ethnic Disparities’[7], which notes:

“There is a wealth of evidence from the academic literature pointing to a greater likelihood of negative outcomes tied to family breakdown, although these are largely focused on the USA. A study in the USA by Sara McLanahan et al (2013) was able to show that father absence was tied to children’s worse educational performance, emotional development, and adult mental health. Research has also linked father absence to increased likelihood of youth incarceration, although this could in part be attributed to poverty. Research for the CSJ shows that children who experience family breakdown are more likely to underperform at school.”

However, analysis of the UK’s ‘Millennium Cohort’[8] indicates that after separation, children are in their father’s care for 22% and in their mother’s care for 78% of their time, whilst 12% have no contact with their father at all. The inequity is even more stark if the parents are uncooperative, with children served by the Child Maintenance Service spending on average only 7% of their time in their father’s care, and a full two-thirds having no staying contact with their father at all [9].

This is an institutional failure to promote children’s welfare interests that seems to require legislative correction.

3.2.       Improved outcomes for Mothers and Fathers

Empirical research has established that both mothers and fathers benefit from EPT:

“Regression analyses on data from 4,175 recently divorced parents show that shared residence parents report higher life satisfaction than other, particularly non-resident, parents, but that this relationship can largely be explained by benefits and opportunity costs of parenthood. Shared residence fathers enjoy a better relationship with their child and their ex-partner and are more engaged in leisure activities than non-resident fathers. Shared residence mothers are more involved in leisure activities, employment, and romantic relationships than sole resident mothers.”[10]

Further, a study published in Forbes in 2021 of American divorcees found that EPT “narrows the gender pay gap”[11], which was confirmed by the second study of the Spanish experiment, which found:

“After separation, women in non-EPT settings suffer significant decreases in their employment (almost 6% decline in four years). Men who separate also suffer a decline in employment, but it is of a much smaller magnitude (2%–4% decrease, depending on whether there is an EPT law in place). Women who separate under an EPT law exhibit a different pattern; their separation has little effect on their employment level…. men who separate under an EPT rule increase their relative employment by 1.5% [compared to non-EPT]. To put this result in context, the estimated effect of joint custody laws is equivalent to that of a wage increase between 6.5% and 10.5%”

This is despite the loss in child maintenance, which loss is about twice as much in Spain than in the UK.[12] Gainful employment improves parents’ mental health well-being[13] and the increased family incomes translate into better outcomes for children.[14]

3.3.       Reduced incidences of domestic abuse

Finally, we can lay to rest the unfounded speculation that a presumption of EPT might increase the risk of domestic abuse. Such speculation has never been supported by empirical evidence, but we now know from the Spanish experience that EPT rules are actually more likely to lead to a “large and significant decrease in intimate partner violence” and “a significant reduction in female partner homicides”. This is the exact opposite effect to that claimed by opponents to EPT.

Such worries were advanced for the Norgrove Report in respect to the Australian experience, but this was quickly debunked:

“However, there is no reliable evidence that the 2006 [Australian] amendments have had the effect of putting any woman, man or child at greater risk of violence or abuse as a consequence of provisions in the legislation than they would have been had the 2006 amendments not been passed.” [15]

Anecdotal and unscientific claims by NGOs who oppose EPT, but who generate a significant portion of their income from ‘supporting victims’ of domestic abuse, should be treated with the caution commensurate with other organisations who are existentially dependent on particular outcomes to maintain ‘market volume’.

3.4.       Reduced burden on the Family Court: the failure of MIAMs in the UK

The second Spanish study found that EPT reduced contentious divorces in court. It postulated that:

“EPT laws, by equalizing the bargaining power of both spouses in a divorce proceeding, act as an incentive for them to reach beneficial agreements for both parents and their children. Hence, one of our main results is that EPT laws reduce contentious divorces…In a sense, EPT laws create the conditions for a negotiation process to arise between the parties of a divorce similar to the one that is intended to be achieved through mediation…”

A rebuttable presumption of EPT brings both parties within a ‘Zone of Possible Agreement’ (ZOPA). No agreement is possible unless both parties are within a mutual range of tolerable outcomes[16]. A presumption of EPT forces each party’s tolerable range to overlap at the 50/50 position, from which negotiations can occur.

The presumption dislocates entrenched positions that inhibit mediation:

“In [family disputes involving children], which are often high-conflict, parties were frequently cited as exhibiting significantly lower motivation to engage in dispute resolution processes at the outset due to their emotional attachment to previously entrenched positions and the potentially antagonistic attitude to the other party.”[17]

Additionally, mediation is a form of negotiation, which requires both parties to ‘give and take’. However, in the absence of an opening position of ‘equal arms’, the resident parent can only ‘give and the non-resident parent can only ‘take’. Such is a basis for charity rather than for negotiation, and there is little-to-no motivation for a resident parent to conclude an agreement out-of-court. Even where agreement is reached, one party is likely to feel that it was made on unjust terms.  Mediation will fail, either immediately or in the long-term, unless both parents feel they have formed their agreement on just and fair terms.

A full two-thirds of divorced women agree with 90% of divorced men that child arrangements ordered by the Family Court were unfair against fathers[18]. With such a perception of judicial bias by those with first-hand actual experience of Family Court, let alone by the general public, there would be no motivation for a female resident parent to agree to anything out-of-court less than her own demands.

The problems inherent to unequal bargaining power are well-known and commonly mitigated by labour relations, consumer protection, residential tenancy and usury laws. Wilful blindness in respect to child arrangements provides no good outcome for children, the disadvantaged parent or the burden on the Judiciary.

So whereas 38% of separated families now use the court to settle their child arrangements in England and Wales[19], notably now in Australia (which retained its EPT rules despite Rhoades’ advice), just 3% of parents use court to settle child arrangements, of which only a third (1%) are judicially determined.[20] Of the 97% that settle out-of-court, 16% of parents use mediators or lawyers, but the remainder (81%) are able to form agreement between them without any legal assistance at all.

Similarly, Kentucky observed an 11% decrease in the number of family court proceedings (including domestic abuse cases) after introducing the presumption of equal shared care.

The effect of EPT on the court’s burden over time was experienced in Australia as follows (from a 2012 paper)[21]:

“There has actually been a sharp fall in litigation over children since 2006 [when the mandatory consideration of EPT was introduced in Australia], after a long period in which the number of applications had been rising, as have contact orders in Britain. A comprehensive evaluation of the 2006 reforms by the Australian Institute of Family Studies (‘the AIFS evaluation’) found that the overall number of applications for final orders in children’s matters (including cases where there were also property issues being litigated) declined by 22% from 18,752 in 2005–06 to 14,549 in 2008–09. Rates of litigation have fallen further since that time. In 2010-2011, the total number of applications for final orders in children’s matters (including cases where there were also property issues), was 12,815. There has therefore been a reduction of nearly a third in court workload in terms of filings in children’s cases in the last five years.

“The main explanation for this fall is the introduction of mandatory mediation before filing unless a ground for exemption exists (Family Law Act 1975, s.60I) … However, mandatory mediation before filing was not introduced until July 2007.”

By comparison, the UK’s implementation of a MIAMs obligation, without establishing a ZOPA and ‘equality of arms’ between the parties, was always set to fail. Indeed, after an immediate effect in the first quarter after implementation, the number of cases going to court started rising again and surpassed the pre-LAPSO 2013 level. The government’s recent mediation voucher scheme, introduced in March 2021, will hopefully have an effect but has not yet reduced the number of court applications or the duration of cases, which continued to increase in 2021 to record levels. So far, the scheme appears to be subsidising private mediations that would have occurred anyway.

Meanwhile, Australia’s success in promoting out-of-court settlements, which enjoyed the underlying foundation of EPT rules, was durable and continued to diminish court litigation long-term.

4.                How did the Norgrove Final Report get it so wrong?

The Norgrove report stated :

“Shared parenting should be encouraged where this is in the child’s interests. In our view the best way to achieve this is through parental education and information combined with clear, quick processes for resolution where there are disputes.

“We are aware that some will be disappointed by our decision to recommend against a legal presumption around shared parenting and to step back even from the recommendations we made in this respect in our interim report. The evidence we received showed the acute distress experienced by parents who are unable to see their children after separation. This is an issue we know countries around the world try to tackle, and fail. Our conclusion was reached reluctantly but clearly. The law cannot state a presumption of any kind without incurring unacceptable risk of damage to children.”

The FJRP got this completely wrong: it was the failure to put in place an EPT regime that has continued to cause harm to children. No EPT regime is reporting increased harms to children, quite the opposite.

4.1.       ‘Outcomes’ was confused with ‘starting point’

It is important to consider, nonetheless, that most out-of-court settlements in EPT regimes are not 50-50 equal parenting time. The practicalities and complexities of real family life mean that an unequal sharing of time is maximally beneficial for most separated families, and so the parents will naturally make agreements accordingly if the negotiation environment is suitable to do so.

The Norgrove report did observe: “The risk is that the legal process of separating can itself cause further harm. Arrangements imposed by court may be inflexible and may sooner or later fail…. Generally, it seems better that parents resolve things for themselves if they can. They are then more likely to come to an understanding that will allow arrangements to change as they and their children change.”

EPT rules create an environment wherein acrimonious parents are encouraged to make, keep and vary agreements between themselves.

4.2.       False dichotomy between EPT rules and the ‘paramountcy principle’

There is no EPT regime in the world that does not have the child’s welfare interests as the paramount principle, or that would require EPT where the child’s interests would require otherwise. So one shouldn’t regard a presumption of EPT as preferring one outcome, but rather preferring one starting position from which to determine the outcome. As such, one should ask:

                    Do EPT regimes create better or worse final outcomes for children?

                    Is EPT a better starting point to encourage agreement than the current de facto starting point, where the resident parent has 100% care and non-resident parent none?

                    Will a presumption of EPT maximise out-of-court agreements and minimise harmful litigation?

                    If the matter goes to court, is EPT any worse than any other default position from which courts should derive an arrangement that is in the children’s best interests?

                    Could the government draft any other default position without violating gender-equality rules or promoting aggressive pre-positioning in respect to child care?

Unfortunately, the Norgrove report wrongly assumed that an EPT presumption “might compromise” the principle that a child’s welfare should be the court’s paramount consideration. There is no evidence from any EPT jurisdiction that this has occurred, despite many being subject to the ECtHR which holds the same paramountcy principle[22]. Indeed, the evidence is that an EPT regime provides significant child welfare benefits both in individual cases and generally, and therefore would be entirely complementary to the principle.

4.3.       The erosion of children’s welfare priority by the ‘Availability heuristic’ and ‘Safetyism’

The ‘Availability heuristic’ is a cognitive distortion that prioritises information that is easily available, recent and stands out.

In respect to children’s welfare interests, this is particularly problematic because of the time difference between ‘risk’ events and realising the developmental benefits of ‘risk-taking’. Using a playground swing as an analogy, the risks of allowing a child to play are short-term, clear and easily measured: there will be specific instances where a child has fallen off and physically hurt themselves. However, the benefits of allowing children to play are long-term and diffuse: as adults they may better understand risk-taking, their own physical capabilities, and they may be less likely to fear heights etc; and there are multitudes of confounding considerations. Where child welfare policy is concerned, large-scale empirical, longitudinal statistical analyses are required in order for benefits to be identified, quantified and compared to disbenefits. Evidence suggests that post-separation care of fathers is actually considerably safer than that of post-separation mothers (supra), but the availability heuristic permits a mythos of ‘father-phobia’ to be created by selectively identifying individual events.

‘Safetyism’ was professionally coined in “The Coddling of the American Mind: How Good Intentions and Bad Ideas Are Setting Up a Generation for Failure[23] by psychologists Greg Lukianoff and Jonathan Haidt, to denote a moral culture in which people are unwilling to make trade-offs demanded by other practical and moral concerns. Rather than seeing safety as one concern among many, it becomes a ‘sacred value’ under a psychological framework similar to religiosity, and overrules other considerations to the extent that children’s overall welfare interests are harmed.

The FJRB’s assessment combined both errors. Its Australian analysis failed to reference empirical, longitudinal data and concentrated on a singular anecdote of failure (which turned out to be inaccurate), and it focussed only on unsubstantiated ‘safety’ fears instead of taking a measured approach to assess children’s long-term welfare interests as a whole.

4.4.       Structuring ‘research’ to obtain a pre-determined outcome

In our population of 65 million people, and a global population of several billion, it is certain that there will be individuals who hate men more than they care about children, or indeed, women. These individuals will cause harm to children (and women) if, by doing so, they will also cause harm to men. It is an open question as to the number of these individuals or where they have settled in our society, but it stands to reason that, like a paedophile BBC children’s presenter, they will seek out positions where they can manifest their passions. We have enhanced DBS checks for people who are involved with children, but there is no similar scrutiny over the individuals advising government on the issues of children’s welfare and father involvement, often despite their public comments disparaging fatherhood and men.

At the time of the Act, the Australian Institute of Family Studies (AIFS) had recently completed a large-scale research project on the efficacy of its equal parenting rules. The AIFS is a government body that is bound by standards of conduct such as impartiality and diligence.  It is curious that the FJRP chose not to engage the AIFS to assist with its evaluation of the Australian system.

Instead, the FJRP engaged the view of one individual, Associate Professor Helen Rhoades of Melbourne Law School, who:

                    Is a law associate professor with no technical qualification in child development or indeed in any scientific or quantitative discipline;

                    had previously published articles[24] that should properly have called into question her ability to report impartially on the issue;

                    was not bound to any professional standards of integrity or diligence, or research standards such as the ‘Magenta Book’;

                    Was not subjected to any peer-review, interrogation or professional challenge of her work;

                    Was assigned a scope of work that was inadequate and inappropriate to examining the issues at hand.

Consequently, a full professor at the University of Sydney[25] noted:

“However, in its discussion of the Australian experience, the Norgrove report contains significant factual errors. Surprisingly, almost none of the arguments made by the Norgrove Committee can be supported by the available evidence.”

4.5.       “Father-phobia”: Ignoring and dehumanising men and fathers

The feedback of men and fathers into the FJRP’s consultation was categorically set aside and ignored. The Norgrove report notes that the FJRP was forewarned of its future failures by the fathers of the children who would be, or had been harmed:

“There were a number of individuals who argued that a presumption of shared parenting was the only change which would allow for progress in the private law system.”

“Responses related to the issue of bias within the system were generally on the subject of shared parenting. The bulk of these respondents self-identified themselves as fathers. There was a feeling amongst some respondents that shared parenting would ensure the child didn’t come under pressure from one parent and was able to give a balanced opinion. Other respondents, particularly mothers, raised concerns about the difficulties of incorporating the child’s voice in cases of domestic violence and/or abuse.”

“The greatest amount of comments related to the issue of shared parenting. A number of individuals, almost entirely fathers, argued that the proposals did not address the problems of bias within the system and that shared parenting had to be recommended. In contrast to this, an almost equally large group, consisting of a greater variety of individuals and organisations, argued that the proposal in support of a meaningful relationship risked undermining the paramountcy of the child principle which had been established in the Children Act 1989. Above all, these respondents argued that the proposal risked exposing children to abusive parents.“

It is particularly galling that the non-resident parent (often male) is presumed to be potentially abusive, whereas in the post-separation environment, biological mothers are twice as likely as biological fathers to kill their children[26] (mostly as the ‘resident’ parent[27]), with mother’s new partner equally likely to kill, so that the mother’s residence is four times more dangerous than the father’s residence. A 2015 NSPCC analysis of Serious Case Reviews identified “Overlooking the ability of estranged fathers to provide safe care for their children” as one of its four “Risk factors”, alongside failing to vet mother’s new partner, listening only to the mother, and poor information sharing[28].

However, the dehumanisation of fathers in the legislative process was completed in the House of Lords, where Lady Tyler declared:[29]

Following the consultation, it became clear that no one thought that strict 50:50 shared parenting—as some were choosing to interpret the presumption—was sensible, workable or desirable. I am very pleased as well that the language has now changed. The most important thing is that the child and their needs are put first.”

Apart from mischaracterising a ‘rebuttable presumption’ as “strict 50:50”, fathers did not even qualify as human beings – they were ‘nobodies’ - to Parliament. The statement exposes the widespread sexism that assumes these fathers were not putting their children’s needs first. The proven benefits of an EPT regime demonstrate that they indeed were putting their children’s needs first, and now calls into question the true motivations of those who continue to oppose it.

5.                Replicating Norgrove’s mistakes: the MoJ’s ‘Risk of Harms’ Report

The Ministry of Justice published the tripartite ‘Assessing risk of harm to children and parents in private law children cases’ in June 2020.  It recommended to repeal even the meagre protection of children’s UNCRC 9.3 rights that was provided by the Act’s insertion of s.1(2A) of the Children Act 1989.

The report made this recommendation without any valid empirical support; failed to make any ‘assessment of risk’ (probability, proximity or impact); and ignored all of the objective  data available to it from court records and instead sought-out and used subjective data. Such an investigative structure would inevitably generate ‘misinformation’. 

Importantly, in a further erosion of the paramountcy principle, the RoH Panel took almost no account of benefits or harms to children, but was focussed on parents’ rights, in particular those of the accuser where an allegation of domestic abuse was made.

5.1.       Principles of ‘expertise’ and ‘pseudo-science’

In October 2021, the President of the Family Division reiterated the judicial view of ‘experts’ in family matters:[30] 

“The expert must demonstrate to the court that he or she has the relevant knowledge and experience ... which is not based exclusively on personal observation or sensation”

“The court will refuse to authorise or admit the evidence of an expert whose methodology is not based on any established body of knowledge”, and

“The Family Court adopts a rigorous approach to the admission of expert evidence. As the references in this memorandum make plain, pseudo-science, which is not based on any established body of knowledge, will be inadmissible in the Family Court.”

5.2.       Staffing

In contrast to the Family Court’s rules about experts, the Panel and Literature Review author were almost all lawyers, with no technical expertise, only one subject-matter expert (who was not a report author), and without a scientist among them. Panel members were mostly imbued with vested interests that should have disqualified them, and operated outside any code of practice or professional standards. Two of the three authors of the Final Report (Liz Trinder and Rosemary Hunter) petitioned against shared parenting alongside Rhoades in Norgrove’s consultation (see 4.24).

In particular, the author of the Literature Review, another lawyer and colleague of the Report authors who was appointed in a non-competitive tender without any selection criteria[31], had published views about the efficacy of the scientific method and partisan views on the subject matter which should properly have precluded her from consideration.[32]

5.3.       Methodologies

The appropriate method for this type of analysis is to draw a randomised sample of court files sufficient to derive statistical significance, and to conduct a structured query of all parties independently.

The investigative methods employed by the RoH Panel had no foundation in any established body of knowledge. The Panel undertook two processes to form its evidence base:

  1.              A Literature Review; and
  2.              An uncontrolled internet survey, followed by a series of ‘roundtables’.

Literature Review:

The Panel wrongly commissioned a ‘literature review’ to synthesise a predominantly qualitative body of evidence. A literature review is a non-systematic form of ‘Rapid Evidence Assessment’, and the civil service’s ‘Magenta Book’[33] recommends against this instrument:

“Systematic reviews often take months and therefore, Rapid Evidence Assessments can be used if less rigour can be tolerated. These methods often focus on quantitative data, but other frameworks can be used to systematically integrate qualitative information.”

The guidance[34] specifically states that Literature Reviews are “Not Systematic”, “their findings should therefore be treated with a great deal of caution” and “Literature reviews are prone to selection and publication bias; that is, they only tend to review evidence that is readily available, and they can be over reliant on sources that disproportionately report studies with positive outcomes.”

Predictably, the Literature Review contained no reference to any study that ran contrary to the author’s conclusion; it misstated and ignored the body of evidence available in respect to parental alienation; it contained errors of fact (such as misleadingly stating the prediction of an ONS study on coercive control,  but the study actually debunked the prediction); and it twice referenced and appended the ‘Duluth model’, which has no scientific support and the Office of the Statistics Regulator has found is ‘likely to mislead’ due to its anti-male sexism.

Survey and roundtables:

The panel’s internet-based ‘Twitter-esque’ qualitative survey process was bereft of any statistical controls, and is therefore unable to be used for conclusions. The subsequent ‘round tables’ were selected from the same sample and so inherited the same errors.

                    There was no verification whether the responders actually attended court;

                    The responders were most commonly an aggrieved party who had already lost their case when their evidence was tested in court, and so were unusually unreliable even for subjective data; 

                    There was no verification of the responders’ accounts against court or other records;

                    Allegations were assumed to be true and took no account of false, vexatious or exaggerated claims;

                    The data was entirely subjective and anecdotal;

                    There was no assessment of (or curiosity about) the children’s wellbeing that resulted from the court’s decisions;

                    There was no control group (ie any result could be independent of court procedures);

                    There was no control to prevent multiple responses from the same person / group;

                    The sample was unrepresentative at 80% female responders (private law is 50:50 male : female parties), and so inherently unreliable.

If this Report were an advertisement, it would violate the rules of the Advertising Standards Agency due to the unrepresentative sampling, the absence of statistical controls, the use of subjective data where objective data is available (“even if the marketer’s intention was to make a subjective claim”), the presentation of subjective claims as objective claims, and misleading publication under the MoJ’s insignia without adequate warning.[35] One would have firmer grounds to believe an ‘anti-aging’ advert in ‘Glamour’ magazine than rely on this Report.

Unfortunately, the Report of the ‘independent panel’ seems to fall within a regulatory ‘black hole’ between government publication and marketing material, and so the product cannot be held to any standards.

6.                Is change to legislation necessary to achieve a presumption of EPT?

The Norgrove Report said that:

“Shared parenting should be encouraged where this is in the child’s interests. In our view the best way to achieve this is through parental education and information combined with clear, quick processes for resolution where there are disputes….

“Progress depends on a general social expectation of the full involvement of both parents in the lives of their children before separation, not on changes in the law.”

This clearly has not worked.

Shortly after the Act, the Judiciary invoked unidentified (and as yet not located) “research” to demote any judicial preference for Equal Parenting Time in M (A Child) [2014] EWCA Civ 1755:

“It is still the case that 50/50 shared care arrangements between parents are comparatively rare in private law children cases. Research shows that a number of factors have to be in place, practical matters such as the close geographical proximity, but, above all, the couple have to be on reasonable or good terms so that the to and fro of everyday life for a child is accommodated without undue emotional fallout.

“There is no longer any need, because of the change in the legislation, to impose a "shared" order under section 8. Both parents have equal status. So a division of time 50/50 will remain, in my view, a rare order and only to be contemplated where there is some confidence that it will not work to the disadvantage of the child, albeit that the aim is to give good quality and substantial time with each parent.”

Scientific evidence has proven the Judiciary to be wrong. EPT is not the majority of arrangements agreed or ordered in EPT regimes, but they are certainly not ‘rare and they are not incrementally harmful where parents remain acrimonious. Legislation is required because the Judiciary seem unable to discern quality technical research from ‘Critical Theory’ ‘knowledge products’[36].

7.                Failure to align private law and public law children’s proceedings practices

Norgrove’s distinction between public and private law matters took no account of the children. There is no distinction in the UNCRC between private law and public law, so it is inherently illogical that children subject to private law proceedings should be less protected from systematic harms than children subject to public law proceedings.

Private law and public law children’s proceedings diverge in that public law proceedings:

                    Must be concluded within 6 months (as a result of the Act);

                    Applies the ‘s.31 threshold’ before alienating a parent: “that the child concerned is suffering, or is likely to suffer, significant harm” attributable to care “not being what it would be reasonable to expect a parent to give to him”[37] (the ‘good enough’ parent);

                    Appoints a Guardian ad Litem to represent the children’s interests to court;

                    Requires direct contact with (an) alienated parent(s), if that is safe[38].

                    Provides Legal Aid to both parents.

7.1.       Timeliness

The Norgrove report (at [ii.5]) recognised the harm to children in both private and public law from prolonged litigation, and made a recommendation for a 6-month limit in respect to public law, but paid the issue no further attention in respect to private law.

No doubt, both public and private law matters are constrained by judicial capacity, but that is not a matter of concern to the children involved and does not mitigate the human rights obligations of the State. Pursuant to Article 6 of the HRA, the State is obliged to determine the child’s civil right to a direct relationship with both their parents (Article 9.3 of the UNCRC) within a “reasonable time”, which must be assessed with reference to the child’s experience of time in the context of their psychological development:

“Child custody cases must be dealt with speedily, all the more so where the passage of time may have irreversible consequences for the parent-child relationship – likewise, cases concerning parental responsibility and contact rights call for particular expedition.”[39]

We suggest timeliness for the child can be improved by an initial, enforceable summary judgement made on witness statements-only, made prior to any MIAM, ordering interim contact and exchange, and necessary directions where there are allegations of significant harm to children. A model child arrangements agreement covering contact considerations and common ancillary issues (mobile phone provision, passports etc) is provided to the parents prior to MIAM.

7.2.       Risk of Significant Harm

There is no logical sense in the current framework, which prevents a child being alienated from a parent by the State unless the child is “likely to suffer significant harm”, but permits alienation by another parent, or by the State (Judiciary) under private law proceedings, without meeting that threshold.

If the child is not likely to suffer significant harm, before the ‘best interests’ of the child can be ascertained, the State has no business intervening to favour one parental relationship over another. To do so would violate the Article 8 rights (right to respect for family life) of one or more or the concerned persons (primarily, each parent and child). Additionally, the maximising principle of Article 7.1 of the UNCRC, that the child has “as far as possible, the right to know and be cared for by his or her parents”, requires the court to maximise the child’s time with each of his or her parents.[40] Equal parenting time is the only position the State (and therefore the court) can take sub-judice that would not violate any of the concerned persons’ conflicting Article 8 rights and the child’s UNCRC rights.

It is therefore logically consistent that, where no allegation of risk of significant harm is outstanding, the State must be bound in the first instance by its conflicting duties to assume a default presumption of EPT, but therefrom, with the assistance of evidence, make such derivations to the extent required to satisfy the child’s welfare interests (pursuant to UNCRC Art.9.3 and s.1 of the Children’s Act 1989).

It is apparent, however, that this is not occurring in most private law children’s services, where the court’s first-instance position is to favour whichever parent was most aggressive during the separation to pre-position themselves to ‘possess’ the child.

7.3.       Appointment of Guardian

Where-ever there is a risk of significant harm from a parent, such as an allegation of abuse, then the children’s interests should be separately represented in court regardless of whether the matter is in private or public proceedings. The Norgrove Report identified that:

“We note recent research that suggests that separate representation in high conflict cases can lead to resolution without further hearings beyond the hearing where the separate representation began. Judith Timms reports that in 89% of cases in the NYAS survey the children’s views coincided with the decision made by the court and that separate representation put an end to repeated court proceedings – in some cases more that twenty – which had punctuated the life of children trapped in the revolving door of acrimonious disputes”

There seems no empirical or rational basis in the report to argue against separate representation in these cases. Norgrove merely noted that representation “could” increase case times and that “cost alone” ruled out the proposal.

However, in such cases Legal Aid is currently provided to one of the parents, and sometimes both where cross-allegations are made. It is not obvious why the accuser is provided legal aid and the accused is not, and this would appear to violate the ‘equality of arms’ principle of Article 6 of the HRA (fair trial) and the maxim of ‘innocent until proven guilty’, by effectively ‘punishing’ the accused before any facts are found. Where allegations are made, either the allegation is true and the accuser may be a risk to the child, or the allegation is false, vexatious or exaggerated, commonly with the intent of alienating the child from a loving relationship[41], in which case the accuser is the risk. Sub-judice favouritism of one parent over another is not in the children’s interests.

There should be no significant additional cost if (i) the Legal Aid currently provided to either parent (or both parents) is replaced by Legal Aid to represent the children instead, especially where the parents could be held to account for costs, and (ii) a Cafcass Guardian is provided instead of a ‘family court advisor’. To the extent that these allegations are false, vexatious or exaggerated for the purposes of accessing Legal Aid, the total costs to the government might be reduced.

In any event, it is the child’s rights that are being determined by the court, and therefore it is their independent Article 6 right to fair trial. Where there is likelihood of significant harm, the child’s interests deserves to be independently represented to the court, rather than vicariously through parent parties, one or both of whom may be harming the child and preoccupied with the adult conflict.

7.4.       Maintenance of direct contact with parents

Where a child is removed from their parents by the State, alienation is prevented and their relationship under UNCRC Article 9.3 is mandatorily preserved by §34 (1) of the Children Act 1989, which requires the State to facilitate “reasonable contact”.

§1.2A and 2B of the Children Act created no such duty in private law on any parent, and no duty on the Family Court to facilitate ‘reasonable contact’. UNCRC Article 9.1 says:

“States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.”[42]

This places a positive obligation (“to ensure”) on the State to prevent the separation of a child from his or her parents before an authority’s decision is made – there is no exception for a private party’s actions to separate the child from another parent. Article 9.3 says:

“States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.”

Before a judicial decision is made regarding the best interests of the child, the State has a positive obligation to ensure direct contact is maintained. However, The Children and Families Act 2014 actually puts the MIAM as a hurdle to obtaining the State’s intervention on behalf of the child. To properly protect the child’s rights, the law must be amended so that a summary judgement is made prior to commencing the MIAM process.

7.5.       Summary interim judgement

We recommend that separating parents engage initially with the Family Court to obtain interim orders before a MIAM occurs, to de-escalate conflict, stabilise the position of the children, and maximise the chance of mediation success. The parents would submit witness statements for a summary interim judgement on submissions.

                    Where abuse is not alleged in a witness statement:

                    Where abuse is alleged in a witness statement,

                      Where the threshold is not met, the parents are referred to MIAM,

                      Where the threshold is met, a Guardian ad Litem is appointed for the children, for whom Legal Aid is provided. No Legal Aid is provided for either parent party.

We endorse the Ministry of Justice’s Family Mediation Voucher system. However, realisation of its potential benefits will be limited without an EPT regime, and unresolvable mediation will merely absorb limited funds, take more time and create more delay to resolution, which is inimical to children’s welfare.

8.                §106 and the deafening silence of the ‘Children’s Commissioner’

The Children’s Commissioner has had no presence in the preparation of the ‘Risk of Harms’ report, the work of the ‘Private Law Working Group’, the Family Justice Council or Board or the current panel investigating §1.2A of the Children Act. With the possible exception of the last, the work of these ‘institutions’ have carried forward with no empirical reference to child impacts - a capacity that the Children’s Commissioner should provide or require in line with the Civil Service Code and Magenta book.

However, these same institutions are over-represented by adult-centric NGOs often with gender-specific interests, no applied professional standards of conduct and minimal technical proficiency.

The Act added special responsibility to the Children’s Commissioner’s remit for the rights of children who are in or leaving care, living away from home or receiving social care services, but inexplicably disregarded any special focus in respect to children’s policy and rights in regards to parental separation (§106 (4)). 

Some 280,000 children are affected by their parents’ separation each year, and the loss of a parent through separation or divorce is an Adverse Childhood Experience[44]. The conduct and direction of the Ministry of Justice policy-making would be enhanced by technical capacity that is focussed on the UNCRC rights and welfare interests of the children rather than the adult parties, and governed by the professional standards required of the Commissioner.

However, the Children’s Commissioner’s conspicuous absence from key policy-forming initiatives and decisions regarding children’s civil rights, and her silence on the same, has demonstrated that the ‘primary function’ under §106 (3) is insufficient to encourage her to take an active role to protect children’s rights in the area of private law proceedings.

The Act should be amended to require the mandatory approval of the Children’s Commissioner in all policy-forming initiatives and reports in respect to private law children’s proceedings.

9.                Failure to enforce orders: facilitating domestic abuse

The Norgrove report noted the importance of enforcing court orders:

“126. Swift enforcement is important where court orders are breached. This will help prevent an arrangement that has been determined to be in the child’s best interests from being ignored and a less beneficial alternative becoming the norm. It will also enable adjustments to be made where necessary. It is essential that where a court order is breached the case quickly returns to court, to the same judge, to enforce the child’s right to have a relationship with both their parents where this is safe.”

Further, the draft guidance for the Domestic Abuse Act 2021 identifies alienating behaviours such as preventing contact as domestic abuse under the heading of coercive and controlling behaviours.

Failure to enforce orders was blamed on the Family Court’s reluctance to administer punishment on single parents: “We noted however that even the current powers are rarely used, often because to use them would be against the interests of children.”

However, there is no ‘single parent’ exemption for parking fines, speeding tickets, or most relevantly, parental fines for child truancy pursuant to §444A of the Education Act 1996. There seems little rationale that single parents can commit common acts of domestic abuse by failing to ensure their children see their other parent, but Local Authorities can freely penalise single parents for failing to ensure their children attend school.

The FJRB at first recommended a financial cost to the recalcitrant parent as “an acceptable intermediate step”, before making other remedies available for ‘contempt of court’ (similar to the addition of §444A of the 1996 Act, which acts as an intermediary step to prosecution). However, the recommendation to use child maintenance as the vehicle was rightly rejected for linking child maintenance and contact, which would “risk strengthening the view that it is acceptable not to pay maintenance when there are contact difficulties or for that matter, that contact can be withheld when maintenance is not being paid”.

Nonetheless, child maintenance is actually calculated with reference to contact, and so the corollary: that contact may be withheld in order to maximise child maintenance receipts, was not addressed. Therefore the recalcitrant parent is not only free from penalty, but in fact financially rewarded, for domestic abuse. It was remiss, therefore, of the FJRB and Parliament to fail to otherwise fill the stated need for a fast and small, intermediate-level ‘penalty’.

The number of enforcement applications continued to increase after the Act and has doubled since the Act to 5,337 in 2021. In 2013, enforcement applications amounted to 4% of private law Children’s Act applications, but has risen steadily year-on-year and was 10% in 2021.[45]

We submit that it was a failure of the Act to provide an intermediate out-of-court penalty for failure to abide by contact orders, and so the law should be amended:

  1.              to empower Local Authorities to administer small, per-occurrence / per-day ‘fines’ for withdrawn contact, similar to parking tickets or truancy notices, which can be appealed for claims of reasonableness, but whilst also retaining access for injured parties to enforcement proceedings for chronic violations;
  2.              so that Child Maintenance is calculated on ordered contact, rather than performed contact, with a fee exemption for applications to vary a child arrangements order for a parent’s chronic non-performance of care duties.

 

April 2022


[1] Family Court Statistics Quarterly: Oct to Dec 2021 - GOV.UK

[2] At §48-1-239 (b)

[3] Nielsen, L. (2018). Joint versus sole physical custody: Children's outcomes independent of parent–child relationships, income, and conflict in 60 studies. Journal of Divorce & Remarriage, 59(4), 247– 281. https://doi.org/10.1080/10502556.2018.1454204

[4] Fabricius, William & Hall, Jeffrey. (2005). Young adults' perspectives on divorce: Living arrangements. Family Court Review. 38. 446-461. 10.1111/j.174-1617.2000.tb00584.x.

[5] Comres Poll (2019) at https://comresglobal.com/polls/fathers4justice-opinion-poll-june-2019/

[6] YouGov Poll (2019) referenced at https://www.thetimes.co.uk/article/fathers-call-for-equal-access-to-children-after-divorce-n5cp9xdxq 

[7] https://www.gov.uk/government/publications/the-report-of-the-commission-on-race-and-ethnic-disparities

[8] Haux, Platt, Rosenberg (2015) ‘Parenting and post-separation contact: what are the links?’ Centre for Analysis of Social Exclusion London School of Economics
https://mk0nuffieldfounpg9ee.kinstacdn.com/wp-content/uploads/2019/11/casepaper189.pdf

[9] Department for Work and Pensions (2020) ‘Child Maintenance Service Statistics: Data to December 2019’ Tables 5-7 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/874149/national-tables-child-maintenance-service-to-december-2019.ods)

[10] Heijden, F. V. D., Gähler, M., & Härkönen, J. (2021). Are parents with shared residence happier? Children’s postdivorce residence arrangements and parents’ life satisfaction. https://atstumimosindromas.info/wp-content/uploads/2016/01/SRRD_2015_17.pdf

[11] https://www.forbes.com/sites/tamiforman/2021/02/09/study-finds-that-equal-custody-arrangements-narrows-the-gender-pay-gap/

[12] Hakovirta, M., & Skinner, C. (2021). Shared physical custody and child maintenance arrangements: A comparative analysis of 13 countries using a model family approach. Shared Physical Custody, 309. Fig14

[13] https://www.mentalhealth.org.uk/statistics/mental-health-statistics-poverty

[14]https://www.ons.gov.uk/economy/nationalaccounts/uksectoraccounts/compendium/economicreview/february2020/childpovertyandeducationoutcomesbyethnicity

[15] Parkinson, P. (2012). Meaningful reform to the Children Act 1989: Learning from the Australian experience. Sydney Law School Research Paper, (12/41).

[16] Harvard Business School Online: understanding-zopa

[17]Ministry of Justice, ‘Call for Evidence on Dispute Resolution: Summary of Responses’ March 2022

[18]Men get a raw deal in divorce cases... according to the women they are splitting from | Daily Mail Online 

[19] Bergström, M., Fransson, E., Modin, B., Berlin, M., Gustafsson, P. A., & Hjern, A. (2015). Fifty moves a year: is there an association between joint physical custody and psychosomatic problems in children?. J Epidemiol Community Health, 69(8), 769-774.

[20] Australian Institute of Family Studies: parenting_arrangements_after_separation - GOV.AU

[21] Parkinson, P. (2012). Meaningful reform to the Children Act 1989: Learning from the Australian experience. Sydney Law School Research Paper, (12/41).

[22] Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 135, 6 July 2010,  X. v. Latvia [GC], no. 27853/09, § 96, ECHR 2013 and Strand Lobben and Others v. Norway [GC], no. 37283/13, § 179, 10 September 2019

[23] Haidt, J., & Lukianoff, G. (2018). The coddling of the American mind: How good intentions and bad ideas are setting up a generation for failure. Penguin UK.

[24] Rhoades, H. (2006). Yearning for law: Fathers’ groups and family law reform in Australia. Fathers’ rights activism and law reform in comparative perspective, 125-146.

Rhoades, H. (2008). The dangers of shared care legislation: Why Australia needs (yet more) family law reform. Federal Law Review, 36(3), 279-299.

[25] Parkinson, P. (2012). Meaningful reform to the Children Act 1989: Learning from the Australian experience. Sydney Law School Research Paper, (12/41).

[26] Sidebotham, P., & Retzer, A. (2019). Maternal filicide in a cohort of English Serious Case Reviews. Archives of women's mental health, 22(1), 139-149.

[27] Emailed response from Professor Sidebotham, 21 April 2020

[28] https://learning.nspcc.org.uk/media/1341/learning-from-case-reviews_hidden-men.pdf

[29] Children and Families Bill House of Lords 2 July 2013- Hansard

[30] President's Memorandum: Experts in the Family Court

[31]MoJ FOI 20201107003 response

[32] See letter from Dr Eric Nelson attached as Appendix

[33] The Magenta Book - GOV.UK

[34] Resources and Guidance: Rapid Evidence Assessments (2014) - GOV.UK

[35] CAP Code rules 3.6, 3.7, 3.13, 3.45, 3.46, 3.47 and 3.50

[36] Pluckrose, H., & Lindsay, J. A. (2020). Cynical theories: How activist scholarship made everything about race, gender, and identity—and why this harms everybody. Pitchstone Publishing (US&CA).

[37]§31 (2) of the Children Act 1989

[38] §34(1) of the Children Act 1989

[39] Guide on Article 6 - Right to a fair trial (civil limb) at [483]

[40] ‘Stability’ or ‘status quo’ is not identified as a child’s right. Pursuant to Art 9 of the UNCRC, the extent to which these elements affect the child’s best interests should first be determined “by competent authorities subject to judicial review”, “in accordance with applicable law and procedures”.

[41] See Hamel, J.M. (2020), "Perpetrator or victim? A review of the complexities of domestic violence cases", Journal of Aggression, Conflict and Peace Research, Vol. 12 No. 2, pp. 55-62. https://doi.org/10.1108/JACPR-12-2019-0464

[42] Note that the term “their will” refers to the parents’ will, or the will of the parents together with the child, because the child is referred to in the singular. It is a child’s right to be subject to his or her parents’ will, consistent with the Article 7 right to be ‘cared for’ by his or her parents and per the Supreme Court: “Family life in this sense, and especially the rights of parents to exercise parental authority over their children, having due regard to their corresponding parental responsibilities, is recognized and protected by the Convention, in particular by article 8. Indeed the exercise of parental rights constitutes a fundamental element of family life” (Re D (A Child) (Rev2) [2019] UKSC 42 (26 September 2019) at [132])

[43] Coercive control by means of false or exaggerated allegations of domestic abuse may account for  NOTE: Women’s relationship advice actively recommends lying about domestic abuse victimisation for social gain: https://lulz.com/how-to-hide-a-promiscuous-past/

“Don’t let your man think too critically when you’re being creative with the truth. Toy with his emotions by hinting, or even saying outright, that a lot of these old “boyfriends” abused you.”

“You already knew to prune any evidence from your social media, but I bet you didn’t know you should also create a plausible cover story for missing information or blocks of time. Blaming it on an ex hacking and vandalizing your accounts after a bad breakup is the good old trusty,”

[44] Reuben, A., Moffitt, T. E., Caspi, A., Belsky, D. W., Harrington, H., Schroeder, F., ... & Danese, A. (2016). Lest we forget: comparing retrospective and prospective assessments of adverse childhood experiences in the prediction of adult health. Journal of Child Psychology and Psychiatry, 57(10), 1103-1112.

[45]Family Court Statistics Quarterly: Oct to Dec 2021 - GOV.UK – note 12% in 2020, likely due to Covid-19 complications.