Are the family courts biased against men? | Child Protection Resource

Too long, didn’t read: No.

This is a post by Sarah Phillimore

But as ever, its more complicated that that. This is clearly an issue that generates strong feelings. If there is no bias in fact there is certainly a perception from many that bias exists. What is going on here? And what if anything can we do about it?

On Saturday March 18th, I spoke at the Families Need Fathers’ Annual conference in Bristol. The text of what I said is largely what is set out in this post so I refer you to that for more detailed consideration of the statute and case law that informs my views.

I have already commented on accusations that I am ‘sexist’ in this post, which may also be worth a read if this is something that concerns you. All I can say is that I was grateful for the opportunity to speak before an audience that was overwhelmingly male and I hope I engaged respectfully and listened carefully what these men wanted to say to me. I am not ‘sexist’. I speak the truth as I see it. If you disagree – tell me and tell me why. But don’t fall back on stale and tired insults.

The issue of real or perceived bias sparked some interesting debate at the conference and later, via Twitter. The issue of how family courts treat men is certainly one we need to address, given the strength of feeling it engenders.

I was very concerned for example, to hear at the conference on Saturday that Dr Sue Whitcombe was alarmed by the bias she perceived from such agencies as CAFCASS, against fathers. The President of the Family Division urged her to raise this with the ‘top brass’. I hope she does.

Justice must, after all, be seen to be done.

Why can’t a father just see his kids as and when he wants?

https://twitter.com/pete_j_morris/status/843376719717437440

This superficially simple question encapsulates the difficulties in this area. Is the family court deliberately, systemically biased against men? Is it sanctioned by either law or culture that the mother holds a veto on the father’s contact?

No. I don’t believe that for a moment. I think the reasons why so many men seem to believe that it is, are explained by many complicated factors. I set out below the ones which weigh on my mind and then some possible solutions or directions of travel.

I don’t mind you disagreeing with me. There may be things I need on my list, or things you think shouldn’t be there. By all means raise this me, in constructive comment. But if you just want to insult me, I am unlikely to find that persuasive.

Contributing factors to the perception of bias

Most mothers, most of the time, are primary carers of young children.
Many men, quite a lot of the time, appear to see looking after young children as boring, unrewarding, low status and they don’t want to do it.
When parents split, the situation that existed before the split is likely to be maintained – i.e. mother as primary carer.
Children aren’t parcels to be passed back and forth or a cake to be divided up between hungry parents. They need a home. They need stability, security and routine.
Quite a lot of men seem to see their relationship with their children thorough the lens of ‘their rights’ and are unwilling or unable to focus on the child’s experience
Quite a lot of women seem to see their relationship with their children as essential to their own identity and become ‘over enmeshed’ with child; they over-react to imagined or perceived defects in the father’s parenting. For further comment on this, see this post about the Rebecca Minnock case.
Quite a lot of people seem to enter into intimate relationships and share their genetic material with people they do not like, do not trust and cannot communicate with.
The family courts does not have the tools needed to tackle the psychological dysfunction of parents. There is no easy access to therapeutic help or even supervised contact.
court buildings are poorly designed and don’t help parents talk to one another at court or feel comfortable in the court room; tensions remain high
The government has removed legal aid from private law cases and created a situation where mothers are encouraged to make allegations of violence against fathers to secure funding
there is a lack of judicial continuity as court loads increase but numbers of judges stay the same, or fall.
There is a growing number of ‘professional McKenzie friends’ who have rushed to fill the post LAPSO gap and some of whom provide dangerous and unhelpful advice
The debate is often ceded to the extremes at either end; to the detriment of sensible and constructive discussion

What can we do about this?

Having a Twitter spat can be entertaining for a brief moment but its utterly futile if all it achieves is people shouting at one another across the electronic abyss.

Here are my suggestions for some solutions. This almost certainly isn’t exhaustive. Please give me some more ideas. The very first step is that we MUST be willing to TALK to each other – not shout over one another. See for example Lucy Reed’s plea on Pink Tape.

early, compulsory education about relationships and what makes them healthy and good
early, compulsory education about the realities of parenting and the need for BOTH parents to be involved.
pre-martial couples counselling so people at least ask each other ‘do we want children together?’ ‘What would we do if we split up?
Better access to advice for litigants in person; recognition that mediation is not the cure all for situations where there is an imbalance of power.
More resources for the family courts so there are enough judges to hear cases quickly and maintain continuity.
Recognition that CAFCASS personnel, social workers and private law children lawyers are more likely to be women. What’s going on here? Why don’t men want to do these jobs? Is it because areas of work dealing with children are seen as low status?
better recognised and better funded pathways to assessment and help for those cases which are becoming intractable.

And perhaps most importantly, and touched on by many at the conference and afterwards. DATA. DATA. DATA. What are the actual facts? What’s happening? What’s working? how can we get this data, interpret it and apply it? This is a clear and keen concern for many; see for example the recent speech by McFarlane LJ.

The President hopes this situation will improve by growth of digital court and consequent ability to ‘mine’ digital systems for data. I hope he’s right.

Over to you Peter.

EDIT 20th March 2017 – ‘lawful’ versus ‘sensible’ actions

Sadly I have to edit this post following my Twitter conversation on 19/03/17 with Peter who appeared to be relying on what I published as ‘expert advice’ that men could simply attend a school and remove their children without consulting the child’s mother or asking her permission.

If that is how Peter is going to interpret what I said, this causes me significant unease on a number of levels:

I do not offer ‘advice’ over Twitter. It would be foolish and irresponsible in the extreme to do so. I don’t know your case, I haven’t read the papers, I can’t possibly understand what is going on.
What I do – I hope helpfully – is attempt to explain general principles of law that may or may not apply to your situation. I also point out that you should ALWAYS take time to get particular advice tailored to your particular situation, before deciding to do or not to do something.
With that in mind, these are the general principles Peter needs to bear in mind and pass on to the men he ‘advises’
- If a father has parental responsibility and there is no court order in place preventing him, then there is nothing inherently ‘unlawful’ in turning up at school and taking your child;
- In my experience in the South West, the police are highly unlikely to act if a child is with a parent who has parental responsibility, provided no court order is breached and they are satisfied that the child is safe and well;
- HOWEVER the police will act to prevent the commission of a crime and to maintain public order. It is therefore usually extremely foolish if you are already in a situation of conflict with your ex, to do something, such as remove a child from school without prior warning or consultation, which can only be seen as hostile act by the other parent;
- If you are in a high conflict situation then I am afraid the practical reality is that the parent with primary residence does have an effective ‘veto’ on your actions, unless and until this can be resolved by you a) both talking to one another and sorting it out b) going to mediation and sorting it out c) going to court and getting an order to sort it out.

PLEASE REMEMBER that just because something is technically ‘lawful’ that does not mean for one second that it is either advisable or sensible to do it. I know it is frustrating to feel that you have to dance to someone else’s tune, particularly when you know you have done nothing to merit being excluded from your child’s life. But if you go down the path, in high conflict situations, of insisting on YOUR rights being exercised in face of opposition from the other parent, I can predict with near absolute certainty that your future looks bleak, in terms of any hope for resolving your difficulties and co-parenting in harmony.

I hope this is helpful Peter.

Too long, didn’t read: No.

Why can’t a father just see his kids as and when he wants?

Contributing factors to the perception of bias

What can we do about this?

EDIT 20th March 2017 – ‘lawful’ versus ‘sensible’ actions

Further reading