“CUSTODY in the UK”
by Robert Whiston FRSA
‘Orphaned by the state’
Oct 23rd 2013
How lovely it is to see so many men and women attending this Custody in Crisis conference.
We have been delayed a little this afternoon and so I have used the time to make myself known to you.
My name is Robert Whiston and I am the chairman of the UK based “Men’s Aid” organisation - but today I am here as President of the European wide “Platform for European Fathers” (PEF).
As we have heard from previous speakers the issues we face are the same difficulties regardless of language we speak, country we come from,or legal system.
We are here, yes, to discuss child-father relationships, but as is evident from the speakers,and the delegates I’ve met before the meeting started,thatunder the present regime custody adversely affects not just fathers but grandparents and second wives.
Previous speakers have touched upon and covered many of the topics I had planned to discuss. This is something of an advantage for meas it reinforcesmy analysis and it allows me to echo their findings.
Itshould galvanise the convictions we all hold – from Belgian to Portugal and from Germany to Switzerland - that things need to change.
It is clear from listening today to the Vice President (Roberta Angelilli), and the former President that the EU is aware of the issues at the highest levels - we now have to translate that into action.
PEF recently helped organise a public opinion poll in both Belgium and Holland. The results showed that of those asked, the overwhelming majority supported more father involvement with child care and 67% of women were in favour of ‘shared parenting.’ [1]
What previous speakers have allowed me to do, therefore, is “ad lib” and focus on aspects not yet covered and to give them more prominence than would otherwise have been possible.
Dr Jan Piet de Man spoke of “parenting plans” and joint physical custody in Belgium.
Dr. Martin Widrigoutlined the issues how custody worked in Switzerland, and family court judge, Antonio Jose Fialho,explored some of the problems and lack of compatible terminology when trying to compare Portuguese law.
Several of today’sspeakers used citations based on research from Anglo-Saxon countries - so as the only Anglo-Saxon here, I think I ought to reply.
We have to acknowledge this lack of research outside Anglo-Saxon countries may be a problem but to those critics who say the research is too biased because of its Anglo-Saxon roots I would reply that what is being measured is the “human condition” and that does not change from one side of the border to another or because the local language changes.
North America has been a source of much of the research and we have to accept that their budgets have for a long time been bigger than those in Europe – and I include Britainin that assessment. In my own country, and this is possible true in your countries, it has been ‘fashionable’ to focus repeatedly on lone mothers and never to examine lone fathers and fathers looking after children.
If a change is to be made,then it is in funding at a European level to research child-fathers issues and not simply keep looking at child-mother issues. The impression I get from academics and others researchers is that money is always difficult to find to finance such father-focused enterprises.
If Europe is the beacon for ‘equality’ we must all visit our MEPs and ask 'Why is there no funding ?'
Terminology
It was clear from what the previous speakers said that the definition of ‘shared parenting’ varies greatly. This is exploited by those opposed to more fatherly involvement which shared parenting allows. Some countries use the term ‘joint custody’ some‘co-parenting’ etc.
Within the present British debate Prof. Parkinson, who helped shape Australiansharedparenting legislation, is of the opinion that:
“ . . . the term “shared parenting” is used merely to describe the continuing involvement of both parents in children’s lives after separation.”
Clearly, this is not what we are here to discuss. We do not just want minimal “continuing involvement”, which has no real definition - we want something more tangible.
Prof. Parkinson states that a minimum definition of ‘shared care’ in international literature is 30% of nights with each parent. That is also the view of all British father and family rights groups.
In his view the term “shared care” rather than shared parenting,is accepted around the world to generally mean that children spend an equal time or ‘near’ equal time with each parent.
What we, in England, would call shared parenting and those in Francemight term co-parenting.
There are good grounds in Anglo-Saxon countries to revise the definition of ‘continuing involvement’because legally and technically speaking, as the law stands - and without added shared parenting (or care) legislation - fathers already have “continuing involvement” just by spending a few hours a week with their child.
What is needed is more hours and days, i.e. a greater quantum of time.
Standardisation
Realising this discrepancy (from country to country) and seeking to eliminate and overcome the inherent confusion,PEF has adopted a ‘simple-to-understand’ measure for ‘shared parenting’ which rests on the number of “sleepovers” or overnight stays granted by the courts to both parents.
Only days that involve ‘overnight’ stays count towards shared parenting time – i.e. the 30% Prof. Parkinson mentioned. W would urge others to also adopt this basis.
Adopting a standardised measure - using the criterion of ‘sleepovers’ – would benefit all countries when trying to compare and contrast their regime with other countries using vastly differing terminologies.
Phrase such as “shared care”, “shared parenting”, “co-parenting” and “shared residence” could all be directly and instantly compared and averages, trends etc deduced.
For instance, the usual custody order in England (and this is probably true of many European countries) is for a father to be allowed to see his child at the weekends and perhaps on one afternoon mid-week. But only one of those ‘visits’ might involve a sleepover.
Since 2006 (almost 10 years ago) the British government, in an official reports, has been promising improved ‘overnight’ stay and sleepover time for fathers.
“Under the new [proposed] scheme, shared care is when a non-resident parent has overnight care of their child for at least 52 nights a year.”
What does that translate into ?
In terms of days, 52 nights amounts to 14% of a calendar year (365 days / 52 nights). A large minority of fathers in Britain do not even get this 14%.
So as a minimum we would want to see the average minimumtime increased from 14% to 30% - as measured in ‘sleepovers.’
In our more enlightened times this increase cannot be regarded as unreasonable but the present 14% is totally unacceptable.
British vs. Irish law
Before the conference, I was asked to include information about Ireland as well as Britain but in the few minutes available to me I can touch on only a few of the distinctions - and then only superficially.
In the fullness of time detailed notes together with detailed citations and graphs will be available on the PEF website.
In many ways, the basis of Irish law has historically been the same as Britain’s and even today it often duplicatesstatute laws passed in Britain 2 or 3 years previously.
However, the main difference between the two countries is that in the mid-1930s (after independence) Southern Ireland adopted a written Constitution which put the family and parents at the centre of the state (See Article 41 to 43 of the Irish Constitution).
It is superb in my view, obliging as it does all Irishgovernments to keep a covenant with its citizens by putting parents and family life at the heart of the Irish Constitution (See Article 41 to 43 of the Irish Constitution).
Britain has never had a single all-embracing Bill of Rights or Constitution but has relied on the protection of “Common Law” – which, like the Rules of Cricket remains to this day ‘a total mystery’ to many Europeans.
Britain may not have a single Constitution but in fact we have several unrelated written ones and until 40 years ago we have always had the power of Common Law (the people’s law) to limit the power of the state to interfere in family matters.
Only ‘statute law’ can override British ‘Common Law’ and that is what has happened in Britain. The ‘personal has become the political’ - and as a result family law (formerly Common Law)has been regulated by vested interests resulting in poor quality andbadly working Statute law.
Ireland has not only Constitutional law but statute law, together with a mixture of residual Common Law left over from its days as part of Great Britain.
But regardless of legal framework fathers in Ireland and Britain suffer the same iniquities. In the case of Britain it isStatute law that is misused and in Ireland it is the Constitution that is overruled.
Custody
There is another difference, however, between Britain and Ireland, and that is in their population size - 60 million versus 4½ million for Ireland.
By comparison to other EU states, Britain, France and Germany have huge populations and monumental numbers of divorces and fatherless children.[2]
Whatever new system we advocate as a replacement must be seen to work not only in smaller countries but also on a more massive scale when applied to the larger EU countries where the price of failure will be more massive.
Of the 60 million people in Britain, approx. 10% are of not of European decent and their customs and traditions are very non-European. In coming years this may pose a problem too for many EU countries
From my talks this morning at the Council of Europe, with the Children’s Rights Division, it is apparent that this dimension, if it has been noted,is being ignored.
As I speak, England’s parliament is going through the pretence of supposedly strengthening ‘shared parenting’ [3] But none of the options proposed will create any greater legislative support for shared parenting than does the existing law – which is poor at best.
Parental separation affects around 3 million of the 12 million children in the UK. In other words, 1 in 4 children in Britain grow up without a father in the household. These 3 million children have little hope of seeing their father in the future; they have essentially been ‘made orphans by the state.’
In Britain 90% to 95 % of custody awards are given to mothers - the same can be said of cohabitees (unmarried couples) who separate,and from whatother speakers have said this is a rate not uncommon in their countries.
This - as you must all be aware - is premised on obsolete 19th values and the 20th century model of the sole male breadwinner.
As society has changed dramatically in the last 40 years, then so too must the law.
This obsoletecustody regime is commonly referred to as “sole-mother-custody” and is the default model in all English speaking countries with only one or two exceptions, e.g. Australia.
Previous speakers have outlined their nation’s experience of custody and parenting and I suspect there will be many similarities to Britain’s.
So I would like to expand the ‘event horizon’ - surrounding the black hole of child custody - and dip into adjacent fields in a general way.
Claims in the media often exaggerate the level of lone fatherhood and of fathers caring for their children in a shared or equal manner.
For example, only last week the Huffington Post quoted the respected PewCenter, in America, as reporting that, “the number of single fathers has risen nine fold” compared with 50 years ago.
In reality that ‘9 times increase’ had raised the number of ‘lone fathers’ looking after children to only 8% - so it is so small as to be minute.
Similarly, in the UK, it is claimed that 5% of children are cared for by lone fathers. But look a little deeper and most of these alleged ‘lone fathers’ are, in fact, widowers.
In my view, and you may agree, many European governments are eager to make reassuring noises in the realm of family law reforms - but never actually deliver. This might even apply to your country.
Peter Tromp, the General Secretary of PEF, very recently drew my attention to Protocol 7 of the "Convention on Contact concerning Children" issued by the Council of Europe (1998),which I think you will find most interesting.
In particular Article 5 states:
"Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage and in the event of its dissolution."
So far only a few countries, such as Albania, Bosnia, Croatia and the CzechRepublic, have ratified this undertaking. By in large, smaller countries have signed it but not yet ratified it, but it is the larger more ‘advanced’ counties, e.g.NetherlandsDenmark, France,Germany,Spain,and the United Kingdom- to name but few - who have not even signed up to the commitment to better facilitate contact by fathers.
If your country’s government seems unwilling, or unable, to deliver better father contact time (visitation), then it could be in part due to the non-adoption of this particular Convention.
Failed legislation
Theoretically, Britain’s child custody legislation (following a divorce) is one of the most advanced.
As far back as 1989 legislation accepted the concept of ‘shared residence’ (not just shared parenting) and legalised it.
But by a directive of government it has never been implemented in full and Britain has never had ‘shared residence’ (except in exceptional cases) and is no better placed than some of the more backward countries in the EU.
In Britain the Children Act 1989 is the pivotal legislation and it allowed for courts to make ANY (yes, any) type of custody order - and by implication any apportionment of time - it thinkssuitable.
Although the “sole-mother-custody” regime applies to over 90% of all custody awards in this has not always been the case.
Before the 1989 Children Act (which is the crucial piece of legislation in Britain), ‘joint custody’ - a forerunner of shared parenting - was growing in popularity throughout the 1980s. In some regions between 30% and 50% of custody awards were “joint.”
In the context of British law, 'joint custody' has always meant ‘joint legal and physical custody’, and not just the more abstract American ‘joint legal custody’ which imparts no rights.
The ‘fact’ that over 30% of custody awards were “joint”always surprises commentators and researchers - and for any doubters here today I refer them directly to the much ignored Law Commission’s ‘Supplement to Working Paper No. 96’ of 1987. [4]
So widespread is this ignorance that one has to ask if researchers and politicians choose to ignore it official data ? Mothers have a veto over a father’s visitation times (and this has also affected grandparent’s rights).
The damage done to a child (the ‘pathologies’ as Dr Jan Piet de Man detailed), of not having fatherly input was for 20 years or more, down played or ignored.
The new phenomenon that has emerged from this situation is “Parental Alienation” and is an unpleasant consequence of “sole-mother-custody” and the ‘locking-out’ of fathers from their children’s lives.
After listening to today’s speakers there is, I feel, a danger not yet foreseen and which we might be ‘sleepwalking’ into and if I explain the British version you may see parallels.
Once, parents had both custody and guardianship of their children and courts were reluctant to intervene unless it involved obvious abuse or mistreatment. But statute laws were introduced in 1989 to remove the status of guardianship specifically from fathers,(the guardianship and custody role of unmarried mothers remains ambiguous), and ‘custody’ was replaced by ‘residence.’
In place of ‘guardianship’ both divorced parents were given ‘joint parental responsibility’ after divorce which may be comparable to “joint parental authority” in some other EU countries. However, in test cases ‘joint parental responsibility’ could be over ridden more easily by the courts compared with guardianship rights which would not have allowed them.
So I would just bring this play on words to your attention which could later have far-reaching effects.
We have learnt, to our cost, that ‘residence’ and ‘joint parental responsibility’ is a lightweight alternative to the former terms and status. Courts can veto parental wishes and it is the courts that now have the exclusive power once reserved for parents.
Distorting data
I had also planned to deal at length with information that is manipulated and misused for ulterior motives but others today have covered the ground most adequately. So I can only lend my support to them.
However, I will just mention one instance of distortion in Britain. The government has accepted a survey by Gingerbread (2008 and 2009), that the level of shared parenting in Britain is at 17% of custody awards in Britain. [5]
This is remarkable, if not implausible, particularly when compared with other more credible data.
If we examine reports from Denmark and Australia we find the level of shared parenting in Denmarkis put at 20% and in Australia(since 2006) at around 15%.