The Law Commission’s Infamous ‘Supplement to Working Paper No. 96’.

By Robert Whiston FRSA; October 12th 2008

See: Law Commission Supplement to Working Paper No. 96 – Review of Child Custody Law (1986)

An Introductory Summary

Background – The Law Commission is the body specifically empowered by all governments in Britain to revise laws and propose changes. It has had this role since 1965.

It is an immensely powerful and influential body and as such has attracted the politically motivated.

Much of its work has focused on the arcane, the detail of obscure laws affecting few or no one. However, it is better known to some parts of the general public for its influence on divorce and custody laws. Throughout its 30 year long history it has continually and incrementally altered the basis upon which family law operates. Their unrelenting programme of change has led to a radical new look in regards matrimonial law and rights. It would be untruthful to summarise this programme as benign or in any way beneficial or equitable. It has benefited whole swathes but equally has adversely affected many others.

Critics point to how the Law Commission has legally ‘orphaned’ millions of children by their legal reforms. Today the government concedes that around 40% of all children in a divorce lose touch with their fathers after a few years. No other organisation, they say, could be said to have caused or replicated in peace time a second holocaust affecting millions of children. It was conservatively estimated, as far back as 1979, that as many as 101,837 children were ‘orphaned’ annually by divorce The 101,837 figure is actually the number of couples divorcing who had children, so the actual number of children affected could be as high as 150,000 or 200,000 pa.

Averaging out for the ebb and flows of divorce rates, a projected 3½ million of the UK’s 10 million child population are, or have been, divorce orphans.

In terms of honesty and probity the Law Commission has made blunders and, for political expediency, deliberately mislead. A former Law Commissioner, Ruth Deech, details some of the deceptions in her booklet “Divorce Dissent” (pub’d CPS, Jan 1994).

Introduction

Supplement to Working Paper No 96”, by J. A. Priest and J. C. Whybrow, is the custody report time forgot and is the research paper every modern researcher ignores – or is ignorant of. It is not freely available on the internet and is not listed in the Law Commission’s list of published reports which only go back as far as 1995.

Law Commission Reports (papers) No 91 and No 96 date from the mid 1980s. Both papers informed the process of re-structuring divorce and custody following the 1969 Divorce Reform Act which introduced ‘no fault’ divorce. In the late 1980s reports No 91 and No 96 were combined to become Report No 172.

Supplement to Working Paper No 96’ (SWP No 96) is a truly remarkable paper and gives us unique insight into the custody habits of Britain before the topic became ‘politicised’ by feminists.

It is remarkable because it overturns many assumptions and contradicts many of the custody papers of today that reportedly describe this period in time.

Rediscovering the contents of ‘Supplement to Working Paper No 96’ (SWP No 96) could potentially be a knotty, if not an explosive, issue for some researchers. It could endanger many reputations as it is seen to dismiss much of the modern day reservations about shared parenting; undercuts worries about confusing children about which residence is their home; demolishes the argument that it is too complicated a system; and undermines the assertion that ‘sharing with father’ is an entirely untried pioneering technology.

Earlier Custody Studies

SWP No 96 tells us that not only is it the first time that the judiciary has looked at itself and into the custody patterns it generates, but that there is a distinct North-South divide over the preferred way that parents arrive at custody choices.

Geographically, England’s chain of courts is, like its police forces, divided into semi-autonomous regional ‘circuits’. This allows us to easily detect any North-South divide and its concomitant socio-economic and income level disparities.

The footnotes within SWP No 96 refer to various earlier studies, e.g. the Woldson study, Raikes, and Maidment. These refer to much earlier surveys of divorce and custody patterns. For instance, the Woldson study refers to a study published in 1977 by the Wolfson College, Oxford. This was based on a 1974 sample of 855 court records of divorces cases in England & Wales but also included some Scottish divorce cases (Scotland has a different legal regime to England and different divorce law procedures). The Maidment study of 1976 was a smaller study made by Susan Maidment and is sometimes referred to as the ‘Keele Study‘ into divorce. [1]

Compared with the high level of attention paid today to divorce and custody patterns it is surprising to learn that no Departmental records were kept in the 1980s:

“1985 was the first year in which records of custody and access orders made by the divorce courts were compiled from court returns by the Lord Chancellor’s Department.” – para 1.3 –

Regional Variances in Joint Custody

The Law Commission survey of 1985 looked at ten divorce county courts in various court circuits and compared the type of awards they made. The survey was cross-sectional and large – over 82,000 cases were examined.

In common with today there was, nationally, a preponderance of awards being granted to wives and sole custody awards also favoured wives, in strict numerical terms.

However, it should be the level and geographical location of joint custody which should attract our attention. In an east-west line, roughly north of Birmingham, SWP No 96 shows us that the preference in the north is for sole mother custody while south of that line the preference is for joint custody.

Nationally, joint custody awards averaged out at 12.9% but the figure masks the also non-existence of such awards in the north and the 40% levels found in the south of Britain.

“According to the statistical returns of 174 divorce registries, 82,059 custody orders were made in 1985. 77.4% of these orders granted sole custody to the wife, 9.2% to the husband and 12.9% granted joint custody.

National statistics do not exist for previous years. However, an impression of past practice may be derived from past research, as set out in Table 6 in the Appendix.” – para 4.21

Analysing Custody Awards

Figure F.l in the Appendix of SWP No 96, shows the proportion of joint custody orders made in each court circuit. The percentage of joint custody orders made in the Western and South Eastern Circuits was over three times greater than that in the North and North Eastern Circuits, with the other circuits giving middling returns (para 5.2).

The ten chosen divorce county courts were asked to compile statistics for the survey, to look at a sample of children and the three mains types of custody orders made, 1). custody granted to the ex-wife, 2). custody granted to the ex-husband and 3). joint custody orders (SWP No 96, p 38).

The resulting information is displayed within SWP No 96, at Table 7 (p.39) by gender split and by age groups.

Table 7 Children Subject to Custody Orders by Age and Sex. (Percentages) n. = 2927

Proportion of children in each category subject to wife, husband and joint orders.

Age of Children [*]

Custody Order

Boys

Girls

0-5

6-10

11-15

16+

Wife Orders

71

73

80

72

67

61

Husband Orders

8

6

3

6

12

16

Joint Custody

21

21

16

23

21

22

Total Number (=l00%)

1497

1430

760

778

788

173

[*] The ages of 428 children were not available.

Of note is the constantly high but slightly falling proportion of children through the age groups awarded to wives compared with the small but increasing proportion of awards to fathers or of joint custody as the children mature.

Joint Custody Increases

Another Table, Table 6, records the number of wife, husband, joint and ‘other’ orders, as a proportion of all custody orders made by the divorce courts in each of the studies cited above (the Wolfson study etc).

The Law Commission concludes that the evidence suggests that there has been more than a threefold increase in joint custody orders made upon divorce since the Wolfson study in 1974. (para 4.22).

Among ‘academics’, for some unspecified reason, the resistance to joint custody or shared parenting has always been strong. Today, that opposition is still prominent.

SWP No 96 comments obliquely on the reluctance, the refusal by the illuminati, to accept the need to shift legal reforms in another direction, describing it as seemingly “to reflect an earlier time”.

“The research of Davis, Murch and MacLeod (‘the Bristol study’) in 1980 seems to reflect an earlier time in the evolution of joint orders.” – para 4.22, page 38.

Significantly, and perhaps this explains the dogged and relentless rear-guard action to notions of father and joint custody, SWP No 96 reports that;

“Results in 1985 from the courts which participated in the earlier studies (Bristol (2) and Wolfson (2)) indicate that in absolute terms the increase in joint custody has been largely at the expense of wife orders.” – para 4.22, page 38

The same citation points out that while joint custody has been increasing at the expense of mother-only custody it has also been at the expense of father-only custody numbers – although the latter ”formed a small proportion of the total number of custody orders at the time of those earlier studies and seem to have been reduced proportionately more in the intervening years,” i.e. would have been felt more keenly.

Joint Custody Awards Are Not ‘Exceptional’

The statistics of those earlier 1970s surveys, e.g. the Bristol study, the Keele study’ etc, are displayed at Table 6 with year of publication.

Starting with a small sample size in 1973 (Maidment) and ending in 1985 (Wolfson 2) this independent series of surveys appears to indicate that joint custody moved from around 3% to 18% across a number of geographical court circuits.

Click table to enlarge:

Pivotal Role of Judges

SWP No 96 makes the point that there was no divorce court in Britain that had never made joint custody orders (Para 5.6). Indeed, an increase in joint custody awards (shared parenting) was recognised in Practice Direction 18th February 1980: [1980] 1 W.L.R. 301.

The authors’ inquiries as to why some courts awarded more joint custody orders than others suggested that the disparity reflected differences both in the courts’ approaches and in the proposals put forward by spouses across the country.

Today, it is unlikely that any representation by a male spouse would influence the award of sole custody to the mother.

SWP No 96, at Para 5.6, describes how the regional pattern masks a consensus amongst the judges interviewed that, where possible, both parents should continue to be involved in their children’s upbringing after divorce. The inference is that by creating a truly equal partnership of child care after divorce there is less acrimony between the parents.

However, from the interviews with the judges, three different approaches to joint custody were apparent:

  1. promotion of the joint custody option (i.e. pro-active)
  2. a non-interventionist or laissez-faire attitude towards the parties’ proposals as to custody
  3. scepticism about, or actual discouragement of, joint custody

Interestingly, several of those judges commented that “they felt they were working in isolation, that they were not aware of the practice in other courts and, prior to their appointment, usually working as barristers, they had gained little or no experience of children’s cases” – a situation still complained of twenty years later by fathers groups in the 1990s and which led to the replacing of the CWO (Court Welfare Officer) regime with CAFCASS.

The approach/views of the judges are considered in more detail in the full version (below) along with other factors which appeared from the interviews to be influential on the type of orders made. (para 5.7).

Judges Alone Increase Joint Custody

Courts registering exceptionally high numbers of joint custody orders, that is to say around 30% or more of all custody orders, are largely confined to the southern parts of the country. The judges in those courts actually endeavour to promote joint orders.

Judges who were interviewed for the survey revealed that in a broad range of cases joint custody was often suggested at the “Children’s Appointment’ meeting. This was true even though it may never have been raised with the parties before and even though a previous court may have awarded sole custody to one of them.

Courts issuing high numbers of joint custody orders are typically served by one or two judges who have developed a common practice. In contrast, less consistent returns were associated with courts which see a high turnover of judges, many of whom may sit only occasionally or temporarily. (In this last comment we see that the consensus in 1985 was probably in favour of joint custody by the more progressive elements and that the authors SWP No 96, might also be well disposed to that option).

Several of the courts which made a high proportion of joint custody orders issue informative literature inviting both parents to the children’s appointment (para 5.8). This education of parents (and brief though it is), may, according to the authors of SWP No 96 possibly lead to a higher proportion of couples indicating a preference for joint custody.

The attendance of both parents upon the judge where the options and the possible ‘outcomes

can be explained clearly enhances the court’s prestige and authority in the eyes of those that are forced to be its clients.

Married or divorced, it is reasonable to assume that both parents want “the best for their children”, and therefore, if the axiom “Knowledge is Power” is true, the court based educational episode will encourage patens to opt for harmonious post divorce relations and/or joint custody. 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.”

In stark contrast to the last 20 years, the authors of SWP No 96 note how CWOs (Court Welfare Officers) in 1985 appeared to be very favourably disposed towards joint custody. They commented how it actually made their lives easier.

Promoting of Joint Custody

In an atmosphere where judges see the positive benefits of joint custody (shared parenting), where CWOs actively embrace the concept, and where solicitors are encouraged to promote the concept as an option to their clients, its works extremely smoothly with a remarkably low incidence of cases being returned to court for non-compliance

Joint custody could once again become a reality, today, if the actors in the family court were predisposed to create a conducive environment by simply re-introducing the option of joint custody to parents.

Contrary to Amanda Finlay’s misplaced belief (a civil servant at Min of Justice, 2002), no primary legislation would be required to effect such a change.

Though judges liked to see CWO available and to read their favourable custody recommendations, SWP No 96 makes it clear that awarding joint custody orders did not hinge solely on the presence of CWOs or their acceptance of that option.

The presence and/or availability of a Court Welfare Officer did not make joint custody more or less likely, as para 5.9 makes clear:-

“ … the newly-raised joint [custody orders] option did not always coincide with a high proportion of joint orders it did facilitate such awards. (Para 5.9).

In fact, SWP No 96 finds that joint custody orders may also result from the work done by the CWO in preparing a Welfare Report and it is noted that the officer’s role has, of late, “become less investigative in some areas and more aimed at obtaining an agreed solution.”

Conclusion

It is a supreme irony that the Children Act 1989 – designed to be the “New Deal for children” discarded all the best elements of SWP No 96 and incorporated only the worst.

Joint custody died the day the Children Act 1989 was enacted and instead of having a choice or moving to a de facto regime of joint custody, the nation had thrust upon it the austere one- size-fits-all regime of the north, where spouses preferred to see wives looking after children.

Para 5.31 reminds us that, “wives received care and control five times more often than husbands.” Husbands being given care and control in 20% of cases today would be an idyll.

In 2008 wives receive the equivalent of care and control in 90% + of cases. Many if not all ex-husbands would wiling trade the present situation for a 5:1 ratio

After the Children Act 1989 all parental choice disappeared. No longer could parents in any part of the country choose to have joint or shared parental care over their children. The better choice for all, namely of joint custody was unceremoniously taken off the table. It no longer existed. The trend identified in Law Commission Report No 96 was killed off.

All that was offered in return was the theoretical and ethereal concept of “joint parental responsibility” for both parents but which was devoid of teeth, meaning or power.

The two reports, i.e. Law Commission Reports No 91 and No 96. were supposedly to give birth to the Children Act 1989 but the process, if we put it into its historical context, was overtaken by the events at Cleveland in 1987. The scandalous allegations of child abuse probably coloured deliberations.

Between February and July (1987) 121 children on Teesside were taken from their families and placed in care.

Dr Higgs and her colleague Dr Geoffrey Wyatt believed a controversial diagnostic practice called RAD – reflex anal dilatation – indicated abuse had taken place.

In just five months Dr Higgs had diagnosed 78 children as having been the victims of sexual abuse and Dr Wyatt 43.

On July 9, 1987 the Secretary of State for Social Services ordered that a public inquiry be held into the scandal

Not for the first time private law and public law became inextricably liked and tangled. Measure better suited to ‘public law’ was mixed in with divorce or ‘private law’. The Children Act of 1989 is around about 90% public law in its focus.

Explaining the north-south divide is not easy. It could be due to the heritage of heavy industry centred in eh northern counties or it could be a culture, heritage or social expectations. It may simply be that the north is more conservative in adopting new values and that its outlook reflected more closely that of the 1960 epitomised by a ruling given by Lord Justice Denning in 1962:

“ . . . . one must remember that to be a good mother involves not only looking after the children, but making and keeping a home for them with their father, bringing up , , , , the children in the love and security of the home with both parents. In so far as she herself by her conduct broke up that home she is not a good mother” – Denning, Re: L 1962.

It could be a cultural imperative or the division could reflect the socio-economic realities. The north might see itself as more “macho” and for it to be more natural for women to look after children. The south might see itself as more likely working flexi-hours than shift work patterns, and in the 1980s being more likely to having households with to income earners.

SWP No 96 points, at para 5.37, to another possible reason for the North south divide when it states that ‘several judges thought the sharing of care and control may be a “relatively middle-class option” on account of the extra resources required to make it work.’

The “Conclusions”, to be found in Part VIII of Supplement to Working Paper No 96, is unsatisfactory in that it does not contextualise events. Rather it treats the results in a disengaged even detached manner that reflects only the mechanics and is only sympathetic to the clinical ‘technicians’ views.

Given the adage that “Man is the measure of all things”, [2] there is a ample reason to add to that meagre conclusion in this Summary and counter the cold summation in SWP No 96 with a ration of humanity. Of necessity this will slightly lengthen the Executive Summary but the detour is a small price to pay.

In some regards it was unfortunate to have undertaken a survey in 1986. It was a year in the middle of a decade that saw seismic changes and was yet on the cusp of more.

The decade opened with the Thatcher years; a depressed economy with growing inflation and unemployment. Employment gives men especially, a sense of identity and purpose.

A depressed economy saw dozens of large employers close, laying-off tens of thousands, e.g. Rubery Owen. This was followed by the Falklands War in 1982 and the protracted Miner’s Strike of 1984 to 1885.

Charles Murray author of “The Emerging British Underclass” (Civitas, 1990) charts the rise of the underclass in the UK back to the 1970s. Murray defines the growth of the underclass as being due to three factors; “unemployment, violent crime and illegitimate births”. He hypothesises that the underclass stems from a lack of socialisation resulting from absent fathers. Into this mix the Children Act 1989 ensures that father have less to do with their children after divorce.

The 1980s was the decade when the soaring cost of weddings was increasingly given by young people as the reason for not marrying and the view was gaining ground among young brides that if they had made an error of judgement in the choice of groom, they could ‘easily’ get a divorce

The Finer report of 1976 had given an impetus, via additional allowances and state benefits, to single mother births. By 1979 single motherhood they had increased 18% from 1971 and had almost doubled by 1989.

Feminist academic and writer, Carol Smart, is cited several times in SWP No 96 together with her book “The Ties that Bind” (1984). Reflecting the fashions of the day her book is openly feminist and deals with, the law, marriage and, quote, “patriarchal” relations.

The only counter point to these expressions is Robert Mnookin’s “Bargaining in the Shadow of the Law” (USA) and ‘The Case of Divorce’ (l979) C.L.P. 65, but these deal more with negotiating gambits and models, thus denying SWP No 96 from giving a balance picture.

For studies closer to the ‘human’ condition of the divorce process ‘Justice and Welfare in Divorce’, by Mervyn Murch, 1979, is cited as is, Children in the Middle, by Ann Mitchell, (1985).

Interestingly, Carol Smart see the matrimonial reforms of the 1950s as culminating in the Divorce Reform Act 1969 – not the 1969 Act acting as a trigger for subsequent reforms.

Some of those pre-1969 matrimonial reforms included:

1957

Maintenance Agreements Act

1959

Legitimacy Act

1962

Law Reform (Husband and Wife) Act [actions in tort]

1965

Matrimonial Causes Act

1966

Family Provisions Act

1967

Matrimonial Homes Act

1967

Family Allowances and National Insurance Act

1967

Abortion Act

1968

Domestic and Appellate Proceedings (Restrictions of Publicity) Act

1969

Family Law Reform Act

The current view in the 1980s, vis-à-vis divorce, still reflected that of the 1960s. Little attention was pad to the impact on, and the price paid by, children in such family manoeuvrings.

In the pre-1969 era it was more or less true to state that adults sought a divorce as a vehicle to a new marriage.

It is also true to say that all over Europe, the politics of the day were favourably inclined to the inevitability of victory of socialism in some form, over capitalism. Learning from those countries that had undergone radical change (the Eastern Bloc) was obvious.

Using official British figures, Ronald Fletcher estimated in his book “The Family and Marriage in Britain[3] (1966) that 75% of divorces ended in marriage. This apparently blindingly obvious benefit of divorce – and how it appeared completely manageable – lay behind the thinking of the 1969 divorce reformers. They could see no serious problems.

However, the pre-1969 era was one where divorce was a ‘last resort’, not a first option; it was usually difficult to obtain and the court had to be convinced by good reasons to grant a divorce.

Sadly, after the 1969 reforms re-marriage never took-off on the scale anticipated and it is only now, 40 years later, that the numbers of re-marriages are approaching those expected levels. In the meantime many children have grown up either with no father at all or a series of ‘fathers’.

At the time the views of social commentator Prof. Ronald Fletcher, lent weight to the school of thought that divorce did not weaken marriage and, strictly speaking (i.e. all things being equal), that is still true today. Conversely, as soon as one of the parameters changes the whole premise is called into question together with the validity of the model.

Did the reformers of 1969 naively believe that it would simply be a matter of making one or two gear changes from 50,000 divorce pa to today’s level of 180,000 divorce pa ?

Perversely too, contemporary thinking led to the belief that increased permissiveness would actually strengthen marriage.[4] The ‘Strengthening of Marriage Bill’, 1964, was just such a manifestation which, fortunately never saw the light of day. This Bill would have recognised de facto or “common law” wives, i.e. cohabitee relationships.

However, a portent of things to come emerges form Carol Smart’s appraisal of the cumulative effect of matrimonial change.

Although she sides with Fletcher’s view that the 1969 Divorce Reform Act did not weaken marriage there is an acceptance that in so ‘regulating the family less’, the 1969 Act and its predecessors actually ‘legitimates the states surveillance and interference into private [i.e. family] matters’.

With hindsight the 1969 reforms were handled incorrectly. The following 20 years are littered with additional matrimonial amendments in an effort to get the new law to work as planned.

If 1986 was the last time custody was examined in detail by the judiciary it is high time that custody was afforded the same mental effort as divorce with a tough and thorough investigation.

There will be those that argue the reforms of the Children Act 1989 were also bungled; that children have become the property of the state – that they have been ‘nationalised. If that is the case, parents have been returned to a feudal past in having no real control and final veto unless permitted.

For the majority of this summary spouses and their divorce have been the prime focus. However, SWP No 96 also deals with non-married fathers and mothers, and their illegitimate children. This topic has to be addressed, of course, but in so doing it tends to muddy the waters in the same way that mixing public with private law leads to a lack of precision.

In 1985 to 1986 the number illegitimate births was a small but increasing phenomenon – one that is usually traced from 1971 or to the Finer Report changes of the mid 1970s. Traditionally, the needs of unwed parents and dependent children were very different and the duties of the putative father are completely dissimilar to that of a legally married father with legitimate children. In such circumstances the father never had guardianship rights – they vested solely with unmarried mother. She had no tangible claim over him for maintenance and he had no right to care or influence the children. They were as separate as two individuals can be. However, by in the mid 20th century and the creation of the ‘welfare state’, this sharp demarcation became blurred

At para 5.43 the report speaks of one solicitor in the North East mentionedother instances’ of orders that favoured of the (ex-cohabitee) ‘father of an illegitimate child’. [5] This instance of such an order and such circumstances are as rare today as they were in 1985 so why it was deemed worthy of inclusion is obscure.

From SWP No 96 we learn that the D.H.S.S. was not consistent in its advice to women who had ‘dependent children’. In a survey in Sheffield in 1980, SWP No 96 found that the D.H.S.S. in some circumstances “encourages wives to take their husbands back to court annually to recoup the annual shortfall for the state” following increase in supplementary benefit rates.

While not a wholly dependable picture, it gives a flavour of mothers on the borderline, be they unwed or the spouses of low-income-husbands, and the attitude of the state at street level. Although SWP No 96 does not spell it out the impression is given that it is the unmarried mother and the illegitimate child that is most in need of maintenance orders and who feel the need to repeatedly return to court. The reciprocal of this is that where fathers ‘feel’ or are engaged with their children such topics are not a problem.

The problems attending maintenance payments for children and getting the sums paid is one that has never been properly resolved. It is a problem common to all countries and civilisations and one that in Britain can trace its ancestry back to 1500.

It is therefore incongruous that the Children Act 1989 should opt for the most litigious option.

It would be wrong to believe that all the current difficulties relating to custody etc date from the Children Act of 1989. Probably the fist divorced fathers group to be set up was FNF in 1976. This tells us that all as not well in the mid to late 1970s. However, by the early 1990s fathers and men’s groups were springing up and creating a Men’s Movement, e.g. Dads after Divorce, UKMM, Mankind, UK Fathers, Equal Parenting Alliance, Men’s Aid, and of course, Fathers 4 Justice etc.

This period (1970s) also saw the beginning of the fudge between children of married couples and children of non-married couples, i.e. the changes to illegitimacy and inheritance. By 1995 the Office of National Statistics (ONS) was not always making the distinction.

Changes in ‘expectations’ were endemic among separating couples in that females could negotiate a lump sum (1961), could not be thrown out the matrimonial home were given by Denning the status of “beneficial interest” and unmarried cohabitees could gain as much as a married women in any financial settlement.

Welfare benefits payment were fudged from ‘contribution’ based to ‘needs’ based, entitling anyone, usually women, to claim benefits from a regime they has not paid into. Welfare benefits once paid only to legal spouses became payable to female cohabitees.

The fudge process went further and affected property law. No longer was legal ownership of property a guarantee of “quiet enjoyment” and a protection from confiscation. The otherwise innocuous Land Charges Act 1972 was by legal gymnastics transformed to give courts the power to transfer property, i.e. the matrimonial home, from the owner to the other spouse.

It should come as no surprise that the bonds that held society together and upon which communities depended began to unravel.

Comparing the potential that SWP No 96 held out for the future with what is now on offer, – now that we have arrived in that future – is nothing short of scandalous.

The difficulty that has bedevilled a satisfactory resolution of child custody after divorce, not only in 1986 but today in 2008, is that policy makers have tried to devise a model that can accommodate the spouses who divorce, with unwed mothers, with funded and under-funded children, with low, medium and high income earners, all against a background of public law priorities.

The ‘Conclusions’ chapter of SWP No 96 (Part VIII), has the air of being out-of-touch which by today’s standards of knowledge, even among the public at large, would not be tolerated.

The level of ignorance displayed by judges in 1985 is numbing. – and some would argue it is not much improves in 2008

For instance, at para 5.34. SWP No 96 records several judges that were interviewed as believing that a joint custody arrangement would be positively dangerous. [6]

Some judges were of the opinion that ‘custody‘ meant ‘care and control’ and could only comfortably separate the concepts when giving examples of care and control in a third parties contexts.

Further, the judges they spoke to

“were all cautious about not making any order as to care and control [i.e. cautious or unsure about the no-order rules], or ordering that it be shared” [meaning that the no- order be shared between both parents].

“Another [judge] wondered if he had power to make no order.”

SWP No 96 construes the concerns articulated by the judiciary about sharing arrangements (joint custody) as stemming from the risk that the child might feel it has no primary caregiver.

By this is meant a person who is solely responsible for the child’s welfare and with whom he has a secure “base camp“. It must be said that this is not entirely logical as a child inside an intact family would have two, no one, caregiver.

More telling is the replies recorded by the authors of SWP No 96; “Even in courts with low joint custody rates, most of the judges recalled having met cases with sharing arrangements”. In other words, joint or shared custody was not unheard of even in courts where it was not the normal practice. That statement cannot be made today.

Another statement that cannot be made today for fear of bigotry is found at Para 8.3 where the authors record that amongst court officials, and solicitors, there was “substantial support” for the role of child care to be played by the female and ‘where practicable’, for the male to be confined to paid employment. With 50% of the work force now made up to women the principle underpinning the 1985 stance for women to be given custody, and or care and control, has vanished.

The prejudices of 1985 are unreformed and still with us in 2008 when at para 8.3 we read:

Some solicitors were clearly cautious about fathers’ prospects of success in contesting custody.

In no case before a domestic court in our survey did a father’s custody claim succeed over a mother’s objection.

The solicitors interviewed, for example, believed that clients generally equate custody with exclusive control over the child’s upbringing. (para 8.2)

Despite claims at one point that, “It seems that it would be less confusing, and in some cases less damaging, were there to be less pressure from all sides towards obtaining a court order”, this view is contradicted by para 8.7 which determines;

The most helpful order in many cases would deal with the child’s residence, with whom he may stay and whom he may visit for shorter periods. It should seek to avoid giving the, often false, impression that other persons are being shut out of involvement in the child’s life.”

The riches of Supplement to Working Paper No 96 have been veiled for too long.

It is a hidden gem with a crouching tiger that stalks the subtext.

ooo0 – END – 0ooo

See: Law Commission Supplement to Working Paper No. 96 – Review of Child Custody Law (1986)

Footnotes


[1] “Children in Divorce: some further data”, p63 http://www.jstor.org/pss/764291 re: John Eekelaar

[2] Man is the measure of all things: of things which are, that they are, and of things which are not, that they are not – Protagoras 490 – 420 BC

[3]The Family and Marriage in Britain”, p 143. Ronald Fletcher draws the distinctions between Britain and the early Soviet

regime, Marxist and the Maoist view on marriage. Carol Smart cites his analysis in “The Ties That Bind”, (p 56).

[4]The Ties That Bind”, (p 58). This demonstrates that a certain cohort have long desired legalisation of cohabitation.

[5] Where previously the mother had created problems in ensuring that the child received proper medical treatment.

[6] The citation given at this juncture was ‘R v R (1986)’, The Times, 28 May 1986.

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5 responses to “The Law Commission’s Infamous ‘Supplement to Working Paper No. 96’.

  1. Pingback: Review of Child Custody Law (1986) - Supplement to Working Paper No. 96 « Law Commission - England and Wales

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