Martin Narey has made a foray into commentary about the family court’s role in private law proceedings, in the shape of an article in today’s Times: Britain’s Family Courts are Fair to Fathers (sorry, paywall).
Of course, he means England & Wales, but let’s not split hairs.
Now I’m all for defence of the courts generally in the face of often unwarranted criticism, but I’m also for criticism of the system where it doesn’t go so well. It’s a big thing to say the courts are fair in absolute terms. Of course they get it wrong sometimes. And recent Court of Appeal authority remind us that they get it wrong in private law cases too, and that sometimes they patently aren’t achieving fairness for fathers (for example A (A Child)  EWCA Civ 1104).
Anyway, the general proposition of this article seems to be that cases like the “X-box mother” (as it has swiftly become in the press) demonstrates that the courts do not discriminate against fathers – stand down men, Mr Narey has reassured you the system works just fine. The case in question is RS v SS  EWHC B33 (Fam) and you can read more about it on the Suesspicious Minds blog if you don’t have a Times subscription. As Martin Narey and Suesspicious Minds both point out, it is not in fact a case about removal as a result of too much x-box or even really for “permissive parenting” (whatever that is), but a case where there were a number of factors and where alienation featured heavily.
It is fair to say that Martin Narey probably didn’t write that headline – just like Her Honour Judge Harris didn’t coin the phrase “the x-box mother” case. Sub editors have a lot to answer for. But the point is the message that is sent to parents reading this article as much as the intention. Headlines matter (which is a shame, because mine are almost universally naff).
Narey says there are four things that parents should take from the judgment:
“The first, and most important, is that the Family Court is bound by law to do not what is best for parents, not necessarily even to do what is fair to parents, but to do what is best for children.” So far, so uncontroversial.
“The second lesson to be learnt is that in making decisions about what’s best for children the fact that children are loved is not, on its own, enough.” Yaddi yadda. But of course.
“The third lesson is that parents need to co-operate with the courts.” Yep. Not that any judgment or publicity is likely to prevent this kind of intractable dispute – parents do not in this sort of case have easy epiphanies, it is sad to say.
“The fourth lesson is not to give up and to have faith that if it can be seen that it is demonstrably in the interests of a child to live with a father, as it appears to be in this case, judges will do the courageous thing.” I agree. Don’t give up.
However, on the way to his fourth proposition Narey says this:
“Fathers who turn to the websites of various fathers’ groups…will be troubled….They will be told that the courts grant residency to fathers in only 7 per cent of cases and that fathers are viewed consistently negatively by both the courts and Cafcass, the public body that advises the courts on the best interests of children. There is little or no evidence to support that belief…decisions are likely to reflect the reality that, before separation or divorce, the mother was most involved in parenting.”
Yet as Narey points out “some…see [the case] as an almost unique departure from a family court system that favours the rights of a mother, it is claimed, over those of a father“.
Based on my experience, I think that criticism of the family courts that is based upon the proposition that judges think that a father’s role is unimportant or that fathers cannot parent as well as mothers is flawed. There are of course individual judges or Magistrates who hold such antiquated views, or who slip from time to time into reliance upon gender stereotypes – but they are few and far between.
However, as recent Court of Appeal authorities demonstrate, there are legitimate criticisms to be made of the way case management of protracted private law disputes can fail parents, more often non-resident parents – who of course are more likely than not to be fathers. And if one counts a transfer of residence as a triumph for fathers rights, this is indeed such a triumph. But in this case, as so often with private law cases that get reported, it comes at the tail end of a lengthy and harmful set of court proceedings during which the mother’s alienation behaviour has harmed the children, and during which the relationship between the father and children has been damaged. It is quite possible that the transfer of residence will fail, or at any rate will not run smoothly.
The 7% figure (assuming it to be accurate) is a red herring – and I suspect it is 7% of all s8 applications (of which only a minority will be really about residence). Transfer of residence as a result of alienation is always going to be rare.
For some parents shared or sole residence is the ultimate goal, a prize, a “win”. This case will not assist the religiously pro-shared parenting, 50:50 equality demanding, rota wielding fathers. It does not contain a point of principle or new understanding of the law that family judges are not already applying in similar circumstances. Transfer of residence is an established, if rarely used, option of last resort in cases of persistent resistance to contact.
Because for many excluded parents residence is not the end but the means – the objective is no more than a meaningful relationship with the child – and the need to transfer residence is on one level a mark of failure. It is right that courts should persist with attempts to ensure a relationship with both parents, it is right that recalcitrant parents should know that this will happen. But I don’t know how many fathers in this situation – or how many judges -would feel triumphant to have reached the point of transferring residence. Fairness would be to allow child and father a relationship, before it got to the point of last resort. Sometimes fairness is not achievable.
And now for the cat rescued from apple tree happy news item…After ten years of war peace breaks out (thanks Suesspicious Minds again).