REPORT: Outcomes of applications to court for contact orders after parental separation or divorce

It has taken me some time to read this report in snatches over the last week. John Bolch has already posted about it, and The Times published an article recording just how ‘furious’ fathers rights campaigners are with it.

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This report is a really interesting piece of work, although much of what it says is no surprise: Everyone in the system works really hard to get parents to agree things…. Delay is a big problem…. CAFCASS are overwhelmed…. The majority of cases end up with some contact, a large proportion with staying contact….There are a difficult few that the courts cannot budge…..

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I’m interested in the take that The Times have on this though, namely that the report’s conclusions“conceal key failings with the present system that give credence to the pain and anger felt by parents who cannot amicably agree contact arrangements over their child or children”.  As John Bolch says The Times journalist gives three reasons: ‘firstly that fathers resent having to go to court in the first place to obtain what they feel should be their right; secondly contact orders may be made, but that contact may be “derisory”, and thirdly courts still remain effectively powerless to ensure contact orders are complied with’.

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But I’m not sure really what the criticism is here – this is a 200 odd page report. It is extremely detailed and deals (as far as is possible from the available data) with the three points raised. And one theme which becomes clear from reading the report in full (rather than just skipping through to the summary and conclusions) is this: that the resident parent (usually mother) is in an inherently strong position simply by being the one with day to day custody of the child. The courts work to counter that starting advantage with some but not complete success. In itself this inherent advantage is not the fault of the system although the problems within the system can compound that inequality. Enforcement is one of several problems which limit the court’s effectiveness. No legal presumption (which is what is being argued for) is going to change that. It isn’t going to affect the number of fathers who do have to rely upon the court to help them get the contact they and their children deserve (so you’ve got a legal right – so I’ll see you in court – same as before). And at my guess it probably wouldn’t radically alter the effectiveness of the courts in performing their role – most litigants either already know or are told by their lawyers or the judge at the outset of proceedings that this is effectively the way things work in any event (he’s going to get contact sooner or later, get over it). A legal presumption would just give fathers something to shout about without necessarily effecting any change in how effective the courts were (CAFCASS reports still take six months, Judges still have limited enforcement options, Mums who are prepared to ignore court orders will still do so).

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And yes, in some cases the quantity or frequency of contact is low, but the statistics contained within the report demonstrate that a large portion of non-resident parents are walking away from the courts with good solid weekend contact. Its not 50:50 or shared care for most parents, but given the geographical distance that is often between parents homes and the realities of a school week where most waking hours are spent away from the resident parent – its very often the most that can be practically manageable both for the parents and the kids. Often its all that is asked for because its what fits with people’s lives.

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Two other things I noticed about this report: 

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Judges, Solicitors, Magistrates and CAFCASS officers were interviewed but no counsel. I don’t know why this was but I think its a shame. I’m sure that the bar would have brought a different perspective (one of the things we do well) to the interviews and that’s an opportunity missed.

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The other point of note is this. There is often a lot of slippage between ‘non-resident parent’ and ‘father’ (Frances Gibb says ‘Fathers – take as shorthand for the non-residential parent’). Whilst the vast majority of the sample cases in the study involved male non-resident parents this was not the case across the board and nor is it the case in day to day practice. Oddly, given the fact that the background of the report was the claim of fathers rights groups that dads are subject to discrimination by the family courts, there is no analysis of the treatment of male NRPs as compared with female NRPs. This may have been because there were insufficient numbers of female NRPs to make the results viable but given that the oft repeated criticism of the family justice system is that it is biased in favour of Mothers and against Fathers it would have been interesting to analyse this (and conversely the treatment of Mothers with residence versus Fathers with residence). It is sloppy to suggest that NRP=DAD. Because it doesn’t. And it is sloppy to suggest that a disadvantage experienced by non-resident parents as a group is equivalent to or proof of discrimination on grounds of sex when in fact the correct comparison has not been carried out. Comparison of the situation of non-resident Dads versus Mums with Residence is bound to suggest a disparity because you are not comparing like for like. The report demonstrates that there is very probably an imbalance of power as between non-resident parents seeking contact and their exes, and that the courts can often only partially redress that imbalance. No doubt it affects men disproportionately (which one might I suppose describe as systemic sexism) but that’s not the same thing as the courts favouring mums over dads.

Rather than concealing failings in the system, I’d have thought that this report provides a wealth of material for fathers rights groups (and anyone else wishing to improve the system) with which to argue for change, increased resources. Perhaps not a document which will much help in campaigning for a presumption of contact but certainly one which could be usefully waved about by those wishing to improve things for children, for dads, for families….Why so furious?

3 thoughts on “REPORT: Outcomes of applications to court for contact orders after parental separation or divorce

  1. Perhaps the reason for some of the anger is that the report was commissioned specifically with the intention of ‘repudiating some of the anecdotal evidence’. (p.3). The government only made a committment to act if that evidence was confirmed, knowing full well that the evidence simply isn’t recorded which could confirm (or refute) the allegations made by fathers’ groups.

    We STILL do not know, for example, how many children eventually lose contact with a parent after separation or divorce – estimates range from under 10% to more than 60%. The report accepts a figure of about 30%, but it is only an educated guess.

    We are also angry because the report is so limited in scope, looking at only 308 cases in a year in which there were 78,000 contact orders. As you observe, the authors didn’t interview counsel; they also failed to interview parents and children.

    You are also right that parents resent having to apply to the courts for contact with their own children. We resent the residence plus contact model, which doesn’t work, and the fact that these cases are dealt with in a legal setting, as if our children were property to be divided up as part of ancillary relief proceedings.

    Fathers are angry because the government clearly doesn’t care much about loss of contact, and is determined to play down the issue – the figure of 10% of separating parents going to court is an example of this, it is clearly false (look at the overall figures for contact orders) and derives from the Blackwell & Dawe report which measures something else entirely.

    Fathers (and many mothers) will continue to argue for proper recording and evaluation of outcomes for children and for an appropriate and objective investigation into the operation of the family justice system.

    Many of us will also argue for a presumption, not of contact, but of shared parenting (‘Good reasons are required if a shared residence order is not to be made.’ – Lord Justice Wall); and that these cases should be regarded as public health or child protection issues (Trinder & Kellett 2007).

  2. I knew you’d be the first to comment. 😉

    I agree with you that there should be a system of recording outcomes for future analysis and trend monitoring. It would be good to know how representative the families are that we see in court, compared with the silent majority who don’t need to resort to litigation. I don’t think its likely to be a priority given the extreme pressure on resources in the system at the moment.

    Whilst I think shared residence is a great outcome if it can be made to work, I don’t think I agree that it should be a presumption – there would simply be too many cases where the needs of the child would require this to be departed from to make it meaningful – the practical difficulties arising from the distance between the parents homes / school and the time constraints of a working parent being the two primary examples. That said I negotated a shared care arrangement last week for a young father of a six month old baby. Whilst initially the practical hurdles seemed insurmountable (right down to how to afford a cot at each home and how to transport all the necessary baby gear from home to home on public transport) we did manage to sort it out and as it turned out split things pretty much 50:50. Time will tell if it works for them or not.

    You say you (‘fathers’) resent the fact that you have to go to court to seek your entitlement in a legal setting – but I’m afraid it is at bottom only parents who can be responsible for that. The Government may be implicated in the failings of the legal system but at the end of the day the legal system is necessary only because parents fail to work together to resolve their differences without it. There will always need to be a fallback probably in the shape of a court, although you may resent that it is so.

  3. Hi familoo,

    I think you are spot on in your comments that problems are so often resident/no-resident parent issues, and not father/mother issues. However, this does not mean that there is no gender bias in the system.

    How many courts (particularly magistrates) are going to fail to award residence, for example, to an apparently- reasonable mother who is still breast-feeding a child? If a child is very young, there is a huge gender advantage for the mother – which then sets up a status quo. I say “apparently-reaonable” because the very fact that the father has had to go to court in the first place suggests that she is not, actually, reasonable in terms of being prepared to share parenting.

    Five years down the line, when a father is just as capable as a mother of collecting the child from school, the gender bias is still present because of the history, and this is an extra hurdle which the father has to jump.

    A rebuttable presumption of shared residence/parenting at the outset would send a message to BOTH fathers and mothers that a father has responsibilities over and above being a cashpoint machine. It never fails to amaze me that there aren’t more women supporting this position, on the grounds that the fathers of their children are NOT being responsible.

    With regard to the report, Nick has hit the nail on the head when he points out that the remit was to repudiate anecdotal evidence. Whilst I cannot agree with him about the validity of the data (and leaving aside the issue of whether they collected the correct data) the conclusions which are drawn from the ANALYSIS of the data have to be viewed in the light of the remit.

    Before the report was even published, an unbiased observer would have to predict that the outcome of the work would be a whitewash GIVEN THE REMIT.

    STH

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