Twenty wasted years – Joint custody is not new or untested, two decades ago it was common in England

By Robert Whiston FRSA, Updated 2nd edition

Family Law Society Seminar, February 4th 2008
Portcullis House, London
Chairman: Mr Henry Bellingham MP

Lord Falconer, the Lord Chancellor once famously declared that an exact split in contact arrangements was “unworkable”.
Not content with proclaiming that fathers “cannot” have an automatic presumption of 50/50 contact he implied that over-his-dead-body fathers “will not” ever get shared parenting. “Children” he went on, “cannot be divided like the furniture or the CD collection. It is more complex than that.”

But is it more complex than that ?

Custody (Working Paper No. 96 on Family Law, UK Law Commission, August 1986)Joint custody, which today is more fashionably called ‘shared parenting’, was reviewed in some detail by the Law Commission as far back as 1986 (England & Wales). Researchers for the Law Commission were enquiring into ‘Child Custody’ matters and in their report, Working Paper No. 96 [1], came to the conclusions that:-

“Indeed, the popularity of joint custody orders may be largely a reaction to the problems caused by ’sole’ orders.” – (page 90)

Extraordinarily by today’s standards their survey found that in domestic courts

“ … over 50% of [child] supervision orders were made with joint custody orders.”

At the time (1985) there was no central directive as to how courts should award custody upon divorce. There were no statutes; no EU ‘guidance’; no government initiatives, and certainly no monetary enticements to recommend one form of custody in favour of another.

Critically, and perhaps key to the success of the custody regime was the total absence of any politicisation of the topic.

What Working Paper No. 96 found was a cultural divide in preferred custody choices in Britain. In the north with its heavy industries of steel, coal and shipbuilding, sole custody to mothers was the most popular form of award.

But south of a line running west from the Wash to Birmingham and then south westerly to Bristol (Map M.2, page 111), where industry was lighter, more diverse with higher levels of office employment, i.e. not so 19th century, joint custody orders were more popular and used twice as much as in the North.

The result of the Family Law Review of Child Law: Custody (No 96) was the Children Act 1989. This was a statute that was intended to inform both judges and public of the two main options available when divorcing. It should have allowed everyone to compare the benefits offered by the two choices.

However, far from the liberating reform it should have been, the Children Act 1989 has proved to be a straightjacket and a denial of choice.

The upshot has been that the only practicable choice available since 1989 has been the ‘sole-mother-custody’ option – that was not what MPs at the time thought they were voting for.

Repeated attempts have been made over the years to re-introduce choice and flexibility. The latest battle lasted from 2003 and culminated in 2006 with the enacting of the Children and Adoption Act 2006.

Throughout this extraordinary period (1989 to the present day) governments of both persuasions have held contradictory positions with regard to custody and children.

Lord Falconer, Secretary of State for Constitutional Affairs (formerly the Lord Chancellor) rejected the idea of an exact split in contact arrangements as ‘unworkable’ and ‘not in the best interests of children’. Despite pressure from fathers’ groups for a presumption of equal parenting time and demands by the Conservative party, he famously put the position as this:

“There cannot and will not be an automatic presumption of 50/50 contact. Children cannot be divided like the furniture or the CD collection. It is more complex than that.” [2]

But is it really more complex than that ?

As we have shown above, Britain seemed to manage such a regime very successfully in the 1980s.

The basic argument fathers’ groups use with regard to shared parenting is that regardless of its symbolic effect, shared parenting orders have the value of demonstrating to both parents and most importantly to the child – that the Non-Resident Parent (usually the father) has a continuing parental role. From this the child recognises the father’s involvement in the child’s upbringing and a more rounded and better ‘socialised’ child is produced. The resident parent (usually the mother) also gains from a wider network of support it enables her to build up outside the home.

In defending the discredited 1989 Act, by famously comparing children with a CD collection, Lord Falconer displayed his own ignorance and that of the civil servants advising him. They were not fully briefed on the topic and did not competently know the background.

Whitehall and minister perennially confound their own arguments when they assert that:

“The Government strongly believes that children need both parents. These proposals will make it more likely that children will continue to have two parents.”

How, one has to ask, will making one parent the sole custodian ensure that “children continue to have two parents”? Experience tells us that for the last 20 years this simply has not happened.

Lord Falconer compounds the disinformation when he is not totally truthful with the public or parliament. Fathers’ groups have never demanded an exact 50/50 split in contact or contact time, only a more reasonable and equitable one.

Just how custody came to be ‘politicised’ needs to be revealed.

How the common sense of the 1980s was replaced by an intolerant authoritarian model is still something of a mystery.

Why we should move from a successful and uncontroversial model to a failed one that brings much misery is baffling.

That nothing has been done for 20 years to correct the situation is a scandal.

But to fully grasp the scandal and comprehend the success snatched from British people we have to read about the custody model that was abandoned.

These are a few excerpts from the Law Commission’s Working Paper No. 96 [1] and relate to the prevalence and attitudes of court ordered post-divorce joint custody arrangements at the time: –

(a). Promotion of Joint Custody

In the courts registering exceptionally high numbers of joint custody orders [footnote 9, i.e. around 30% of custody orders and above], which are largely confined to the South of the country, the judges seem to endeavour to promote joint orders. Judges interviewed said that joint custody may be suggested at the children’s appointment in a broad range of cases, even though it may never have been raised with the parties before and even though a previous court had awarded sole custody to one of them. These courts are typically served by one or two judges who have developed a common practice. In contrast, consistent returns are less likely in courts which see a high turnover of judges, many of whom may sit only occasionally or temporarily. – Para 5.7 page 45.

Several of the courts which make a high proportion of joint custody orders issue informative literature inviting both parents to the children’s appointment and this may include an explanation of, and indicate a preference for, joint custody. Dual attendance clearly enhances the court’s ability to encourage joint custody and, indeed, some courts will only suggest a joint order if both parties are present. From our study, the literature seems to serve its purpose in that in these courts there has been noticeably higher attendance by both parents, sometimes in over 50% of cases.” Several courts also encourage solicitors to come to the hearing (and endorse the Green Form for attendance), which may enable additional flexibility at the appointment if, for example, a parent is unsure whether to accept the suggestion of joint custody. –Para 5.8 page 45.

In the courts we visited where a high proportion of joint custody orders are made the children’s appointment tended to be heard informally in chambers, with the attendance of a court welfare officer. Such facilities depend on the resources available, which vary considerably, and the degree of liaison between the judge and the officers concerned.

An atmosphere may be created which is conducive to introducing the option of joint custody. Some courts make use of a short adjournment for the parties to discuss with the welfare officer either their differences or, in some cases, the newly-raised joint option, although the presence or availability of a welfare officer did not always coincide with a high proportion of joint orders.

Joint custody also may result from the work of the welfare officer in preparing a welfare report. The officer’s role has become less investigative in some places, more aimed at obtaining an agreed solution. –Para 5.9 page 46.

The majority of solicitors interviewed who practiced in the South West asserted that there had been an increase in the amount of spontaneous interest among clients in joint custody. These solicitors commented that clients are increasingly well-informed and have often made other inquiries before consulting a solicitor, whether at a Citizen’s Advice Bureau, or among divorced friends or simply in consumer advice literature. Some solicitors tended to attribute the recent increase of interest in joint custody to increased media coverage. All the North East solicitors reported that clients rarely show any spontaneous curiosity about joint custody orders. It tends to be raised only by “well educated/ better-informed / middle-class” parents such as “university people”, teachers, executives, prosperous farmers, and so on. Several judges in low joint custody areas added that joint orders are generally only sought by “middle-class” couples. – Para 5.12 page 48.

The judges who promote joint custody expressly denied that it is a “middle-class option”, yet only one of the courts which recorded a high number of joint custody orders serves a predominantly “working class” area (see Table 8).

One judge characterised his area as ripe for high joint custody, given the parents’ “civilised” attitude to divorce and their articulated concern to do the best for their children, taking a continued interest in their development, education and careers. Similarly, he thought, the children of these parents are relatively advantaged and issues such as education (often private) remain live, requiring decisions to be made. In contrast, a judge in an inner city court thought that the joint custodial issues, education and the like, were largely of little relevance to his clientele……. ” – Para 5.13 page 48.

(c) Scepticism about Joint Custody

In several courts where joint custody is below the national average the judges interviewed react with scepticism to parties’ proposals for joint custody. They require to be convinced that sufficient harmony exists between the parents and may order an adjournment for the parties to think over their suggestion. Equally one judge said that the court may dissuade the parties from joint custody, starting from the premise that a joint order is unnecessary, may be detrimental and therefore requires justification. In the North East where joint custody is low, very few solicitors would themselves take the initiative in suggesting joint custody though most had experience of some cases in which it had been desirable for women clients to accept joint custody as a means of avoiding a contested hearing, if not as to care and control then as to the form of the order as regards custody.

In such cases, the solicitors had invariably “sold” the idea to the client by explaining away the joint order as “just a matter of words”. – Para 5.16 page 50

The main argument over joint custody, however, concerns its symbolic effect. Amongst the judges, proponents consider that joint orders have the value of demonstrating to both parents and the child that the non-residential parent (usually the father) has a continuing parental role. His concern for the children is recognised. His involvement in the child’s upbringing is encouraged by the ‘joint’ status and his sharing of responsibility may assist the residential parent by providing a wider network of support. The lower status of an ‘access’ parent is relatively discouraging to the party who has lost custody. Equally, in the interviews carried out with solicitors, it was universally believed that clients equate sole custody with “complete control”, subject to wellknown exceptions such as access and change of a child’s surname. – Para 5.20 page 52.

Surprisingly over 50% of supervision orders were made with joint custody orders. All of these were made in Southern courts with high numbers of joint custody orders (Guildford, Exeter and Wandsworth) which seem to confirm the link between joint custody and supervision noted in paragraph 7.21. – Para 7.24 page 85.

Part VIII: Conclusion

Apart from differences over substantive policy, divergence amongst practitioners is also attributable to uncertainty over the tools of the trade. Differences between the orders available in the various custody jurisdictions, for example between custody and legal custody, and custody and care and control, do not seem to be helpful in practice.

Indeed, the popularity of joint custody orders may be largely a reaction to the problems caused by ’sole’ orders. – Para 8.6. page 90

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Footnotes:

[1] “Family Law Review of Child Law: Custody; Supplement to Working Paper No. 96 – Custody Law in Practice in the Divorce and Domestic Courts”; Law Commission; by J. A. Priest and J. C. Whybrow; London; August 1986

[2] – (a) Parents to face fines for refusing access; The Independent – Crime, UK – By Maxine Frith, Social Affairs Correspondent – Thursday, 22 July 2004 [*];
– (b) Commentary by Sir Bob Geldof : A lost opportunity to give children their human rights; The Independent, Opinion, Commentators, Bob Geldof, page 29, Thursday, 22 July 2004 [**];
– (c) ”Divorce plan puts children first – Fathers’ call for automatic 50-50 contact time ruled out”; The Guardian, by Clare Dyer, legal correspondent, July 22 2004 [***].

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[*] Parents to face fines for refusing access

The Independent – Crime, UK – By Maxine Frith, Social Affairs Correspondent – Thursday, 22 July 2004

Parents who refuse their former partners access to their children after separation or divorce could be ordered to pay compensation or sentenced to community service under government proposals published yesterday.

Parents who refuse their former partners access to their children after separation or divorce could be ordered to pay compensation or sentenced to community service under government proposals published yesterday.

The reform of child custody rules is designed to give fathers more rights and end bitter court disputes between estranged couples. Ministers want the system to move from lengthy and adversarial court cases to procedures based on mediation and conciliation.

Under the Green Paper proposals published yesterday, separating couples will be encouraged to draw up “parenting plans” to come to an amicable arrangement about contact. The rules on legal aid will be changed to promote earlier, more consensual resolution of custody cases, and couples will have to show they have tried some form of mediation before they can resort to the courts.

Lord Falconer of Thoroton, the Constitutional Affairs Secretary, said:

“The Government strongly believes that children need both parents. These proposals will make it more likely that children will continue to have two parents.”

But radical fathers’ groups have been angered by the Government’s rejection of their demands for an automatic 50-50 split in custody rights when couples separate. They vowed to continue with their direct-action stunts and said the reforms did not go far enough.

Matt O’Connor, founder of Fathers 4 Justice, said:

“We are profoundly disappointed with the proposals as they just recycle existing legislation and do not give fathers any kind of equality. This will just inflame the issue for our members – it is like pouring a tank of petrol on a burning house.”

Mr O’Connor said his group was planning to stage a major protest in the next few weeks over the Green Paper proposals.

Lord Falconer rejected the idea of an exact split in contact arrangements as unworkable and not in the best interests of children. He said:

“There cannot and will not be an automatic presumption of 50/50 contact. Children cannot be divided like the furniture or the CD collection. It is more complex than that.”

Of the 200,000 couples with children who separate and divorce each year, the vast majority of access arrangements are agreed amicably.

But about 10 per cent end up in court, with some cases stretching on for years and hundreds of hearings and increasingly acrimonious disputes between parents. The average custody court case takes 36 weeks to complete.

Fathers 4 Justice claims that 100 children a day lose contact with their fathers because of the court system or the refusal of mothers to comply with custody arrangements.

At the moment, the courts can impose fines and jail sentences on parents who refuse to comply with contact orders, but these sanctions are rarely used.

Under the new proposals, parents could be forced to attend counselling or parenting programmes or be sentenced to community service if they flout the courts’ orders.

A parent could also be ordered to pay their former partner compensation if, for instance, a holiday has been booked by the father and the mother refuses to allow the children to go at the last minute.

More moderate campaign groups welcomed the Green Paper proposals.

Duncan Fisher, director of the group Fathers Direct which has condemned the actions of more radical campaigns, said:

“This is a historic moment, marking a shift to a legal system that can deliver co-parenting after separation and protect children from harm.

“The principle that the best parent is both parents lies at the heart of the proposals.

“This represents a huge step for many parents who have had to fight for years for a level of contact that this Green Paper acknowledges as the norm.”

The issue of fathers’ rights has become increasingly high profile over the past 18 months, mainly due to the radical Fathers 4 Justice movement.

Its members complain the courts are biased in favour of women and that even when fathers are granted access, their former partners have refused to comply with legal orders.

Fathers 4 Justice now claims to have more than 10,000 members, and recent direct action tactics have included hurling flour bombs in the House of Commons, dressing as action heroes and protesting from road bridges, and ambushing solicitors who act for women in custody cases.

Patricia Hewitt, Secretary of State for Trade and Industry, said:

“I very much regret that some people have tried to turn this into a guerrilla battle between fathers’ rights and women’s rights. This is about parent’s responsibilities and the child’s best interests.”

Bob Geldof, who has become a vocal campaigner for fathers’ rights, criticised the Government’s proposals and backed demands for 50-50 custody splits.

Writing in today’s Independent, he said:

“The Government’s tinkering has failed to address the fundamental injustice at the heart of the present system.

“The document … does not grasp the nettle of giving parents equal access to their children and it continues to treat fathers differently to mothers.”

‘The system is biased against men’
Tony Lewis won residency rights over his two sons after he and his wife divorced, but endured a bruising battle with the court system.

“I was the primary carer when I was with my wife and I was staying in the marital home, which I thought was important for the children,” he said. But the family court could not understand that neither women nor men make better parents – we just do things differently. Fathering today is a hands-on issue and a 70-year-old judge often has no notion of that.”

Mr Lewis, 42, was married for 10 years. His sons James, nine, and Anthony, eight, now live with him, and see their mother regularly.

“The whole system is biased against men,” he said. “Couples are almost told to throw allegations at each other in a divorce case. Fathers should have equal rights to their children – that is all we want.”

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[**] Sir Bob Geldof : A lost opportunity to give children their human rights

The Independent, Opinion, Commentators, Bob Geldof, page 29, Thursday, 22 July 2004

by Bob Geldof

They have got the title right, but not an awful lot else. “Parental Separation: Children’s Needs and Parent’s Responsibilities” is what the Government has called the consultative document it issued yesterday on what happens to children when a marriage breaks up.

The Green Paper is a huge disappointment. It makes a lot of fine statements about both parents being needed to bring up their children after divorce. But it offers little that is not already covered by the 1989 Children’s Act. The Government’s tinkering has failed to address the fundamental injustice at the heart of the present system.

The document speaks about helping parents to resolve disagreements through mediation rather than litigation. It hopes to speed up courtroom appearances. It proposes that one judge should see cases through to the end to ensure continuity. But it does not grasp the nettle of giving parents equal access to their children. And it continues to treat fathers differently to mothers.

The minister responsible, Lord Falconer, rather patronisingly sought to justify this failure yesterday by saying that there could not be an automatic presumption that access should be split between parents, 50:50. “Children cannot be divided like the CD collection,” he said.

Such statements are shallow and unhelpful. What is at stake is not the needs of adults, but of children.

Children need fathers. The empirical proof is that children are hugely damaged by having their fathers effectively removed from their day-to- day lives. Indeed, some experts have argued that is, in fact, a form of child abuse to deprive children of their father. What is involved is a human rights issue for the child, something which is recognised in countries like Denmark, Sweden and some US states, where a 50:50 access split is the norm.

The Green Paper enshrines a hoary old belief. Though it announces that the law is gender neutral in intent – which is nonsense, as can be seen from the plain fact that in 93 per cent of cases it is the woman who gets the children – it perpetuates the outdated notion of bread-winning men and child-rearing women. The facts give the lie to this. More than half of the national workforce are women now (51 per cent at the last count). Yet the Green Paper insists that 50:50 access “would not work in practical terms, owing to living arrangements or work commitments”.

What this adds up to is a restating of the discredited notion that women are the ones with the emotional intelligence, and that men are restricted to the analytical sphere. Mothers are nurturers, while fathers are feckless, fickle and incapable of emotional engagement with their children. This is the contemporary restatement of the prejudice that branded women as the hysterical sex who could not be given the vote for fear they might have to exercise it at the wrong time of the month. Small wonder that angry fathers used the suffragette colour – purple – for the flour bombs with which they bombarded the Prime Minister.

Ministers say that 90 per cent of parents who split arrange access without recourse to the courts. But that disguises a systemic bias. Many fathers do not resort to the courts because they know that they are unlikely to win, and that a court case will only upset their children and waste their money. That there is a far larger constituency of angry people who want fundamental changes to the law was brought home to me recently when I addressed the annual conference of Townswomen’s Guild on the subject of giving fathers more access to their children. Many elderly women spoke in tears at the way the law prevented them from seeing their own grandchildren.

I am not convinced that the Children and Family Court Advisory and Support Service is the right body to supervise the process of mediation. (The parents are already in litigious mode by the time they enter the court building.) And it’s not clear why the Green Paper’s proposals for parenting plans should work any better than they have in the past – they have been around since the 1990s and are rarely used.

Nor is it clear why it would work to give courts powers to impose community- based orders, such as voluntary work, on recalcitrant mothers who repeatedly flout the access arrangements the court has imposed. At present, tens of thousands of fathers each spend thousands of pounds trying to enforce court orders which their ex- wives just ignore. Although judges have the power to impose prison sentences for persistent and deliberate breaches. they rarely believe it is in the interests of the child to send a mother to prison. They do, however, send 40 women to jail a year for not paying their TV licence. What price the kids then?

Nor is it clear, in a week when the Prime Minister and the Home Secretary have made such play on boorishness, yob culture and social misbehaviour, why they have missed the clear link between fatherlessness and the explosion in young offending. What was needed was for the Government to send a clear message about the equal, but different, importance of the mother and father in the upbringing of children. They have missed their chance.

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[***] Divorce plan puts children first – Fathers’ call for automatic 50-50 contact time ruled out

The Guardian, By Clare Dyer, legal correspondent, Thursday July 22 2004

A shake-up of the family justice system in England and Wales to ensure that both parents maintain a “meaningful” relationship with their children after divorce or separation was unveiled by the government yesterday.

The plan, outlined in a consultation paper, aims to tackle disputes over child contact early, before they become intractable. Parents who apply for court orders will be directed to go through in-court conciliation to work out their own parenting plans.

But the government has rejected a demand by some fathers’ groups, and adopted by the Conservative party, for a presumption of equal parenting time.

Lord Falconer, the constitutional affairs secretary, said:

“There cannot and will not be an automatic presumption of 50-50 contact. Children cannot be divided like the furniture or the CD collection.”

Parents will be shown plans which have been found to work. In a typical scenario the child may stay with the father every other weekend plus one weekday night, alternate festive occasions and extended time during school holidays. Parents who want 50-50 time would be free to do so.

The move follows a series of high-profile protests by the militant fathers’ group Fathers4Justice, whose members threw a flour bomb at Tony Blair in the House of Commons, and years of lobbying by moderate groups.

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7 responses to “Twenty wasted years – Joint custody is not new or untested, two decades ago it was common in England

  1. Pingback: Anna Freud – Her secret failure (Part 1) « Robert Whiston

  2. Great article. The spin around shared parenting by the Labour Government re. splitting children like a CD collection is appalling, and shows that they do not understand the whole area of what’s best for children. The State needs to be taken out of all bu the most serious cases.

    • Thanks Dave for your comments. You have only to look around Europe to see that is still perfectly possible, e.g. Belgium. I hope you are putting peressure for change on your MP or on the candidate in wainting ?

  3. Pingback: Children Act 1989 – the elimination of shared parenting « Robert Whiston

  4. Pingback: Spruijt – sliced and diced « Motorist matters

  5. Pingback: Spruijt – sliced and diced « Father Knowledge Centre Europe

  6. Pingback: Anna Freud: Part 1 – ‘Her secret failure’ « Motorist matters

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