1) CHILDREN ACT 1989 (CA) – PRIVATE LAW
a) Parental Responsibility
All the rights and duties of a parent are tied together in one phrase, Parental Responsibility (PR). CA states that married parents acquire PR on birth (whether they marry before or after the children’s birth). It is for unmarried parents that the clear and obvious discrimination occurs. As it states in CA, ‘an unmarried mother acquires PR on birth. An unmarried father can acquire PR in one of the following ways …’ – Blatant discrimination!
When a father challenged this discrimination between married and unmarried fathers, he lost. The Judge stated that this was reasonable to sort ‘between meritorious and non-meritorious fathers’. Interestingly, he did not challenge the CA on the grounds of discrimination between men and women… Nobody dares to state that SOMEBODY should distinguish between meritorious and non-meritorious mothers!
One of the few ‘successes of the father’s movement is claimed to be the change which became active from 1st December 2003. Any birth JOINTLY registered after this date will automatically give PR to both parents. The problem with this is three-fold –
(i) The unmarried mother does not have to jointly register, so the choice of giving PR to the father is up to her. Once again, the mother can veto the father’s rights by registering alone. The unmarried father has no right to register the birth on his own.
(ii) If a father is unaware of the child, then he has no opportunity to jointly register. Thus the father’s involvement is only if the mother consents to notify him.
(iii) It is not retrospective and unmarried fathers of children registered prior to 1st December 2003 still need to use one of the other methods.
If the father is not permitted to jointly register, then he can acquire PR in one of the following ways –
(i) He can marry the mother (!)
(ii) If the mother consents, they can sign a PR agreement
(iii) The father can apply to the Court (#200) – the Court may award the father PR. He may get PR by default as a result of applying for and being awarded Residence (Custody).
The mother can oppose the granting of PR on the grounds that the father is going to use it to ‘interfere’ with her upbringing of the children. Since PR is meant to ‘share’ the responsibility of bringing up children, it is obvious that he should be allowed to ‘interfere’ i.e. be ‘consulted’ about all children issues. As with other Orders, there is widespread use of false allegations by the mother to ‘damage’ the father’s chances. However, in most circumstances, the Judge will grant PR where the father has shown an on-going commitment to the child. However, this prior commitment as evidenced by contact, could only take place with the consent of the mother.
In practice, most organisations would treat an unmarried father in the same way with or without PR. However, if they do not, then waving the PR Order in their face is normally sufficient to make them comply.
PR is crucial in the following circumstances –
(i) Change of name – In order to change the surname of the child, everyone with PR must agree. Theoretically, the unmarried father should be consulted prior to the change, but he would still have the right to apply to the Court to reverse a change of name. In practice, it is extremely unlikely to be worth ‘rocking the boar’ by attempting to stop a mother changing the child’s name.
(ii) Adoption – Theoretically everyone with PR must be consulted before a child is adopted, although the Court can still over-ride his or her objections. In an absurd case, the mother had put her first child up for adoption before birth and there were no problems with the adoption and she never saw the child (taken away on birth). With her next child, however, the Social Services (SS) happened to find the father and he was offered and accepted Residence of the child. After a couple of years (and no doubt after reading about how unfair things are for fathers!) he applied to adopt his own child (!). The mother was in full agreement and that should have been the end of it. They went to Court and the County Court (lowest) Judge approved the adoption, but the SS appealed the decision! They stated that the mother was not really aware that this would mean the end of her involvement and ‘she might change her mind in the future’, notwithstanding that they had been entirely happy for her to have her first child adopted at birth. The Court of Appeal overturned the lower Court’s decision and refused the adoption. The father appealed to the House of Lords and the decision was reversed, granting the adoption to the father. The moral of this story is that a mother can put her child up for adoption and anyone in the entire world can adopt it without any problem, except the natural father!
(iii) Circumcision – Important events in a child’s life that cannot be reversed, like circumcision, should require both parents’ consent. In reality, if the mother asks for the operation (and attends with her new partner pretending he is the father?) it is unlikely that the doctor would raise the issue. Once the operation is done it is too late for the father to complain. Thus the father only has to be consulted if the mother consents.
(iv) Passports – In the past, children were added to their parents’ passports and either parent could take their children out of the country on holiday without any problem. As a few parents (fathers?) were taking the children and not bringing them back, the Government changed the law and now requires all children to have their own passport (and change photos every two years and have to sign the application!). Thus ownership of the passport means control of the child. Theoretically, anyone with PR can only take the children out of the country with prior written consent of all other people with PR. In practice, if the person with the passport (normally the mother) wants to take the children out of the country, she can do so. The other parent, normally the father, can only do so if he can get the passport from the mother. Thus overseas holidays for fathers and children can only happen, if the mother consents. Some countries have added further restrictions on entry, requiring a ‘letter of consent’ from the other parent when travelling alone! I wonder if this rule is applied equally to both separated parents?
On returning to Luton Airport after a holiday with my son, the (female) passport officer asked my son, ‘Who is this man?’ I asked why she was asking this question and she replied that since we had different surnames she thought it was a reasonable question. I do not. I am sure she would not have asked the same question of his step-father when travelling with his mother, or where the genders were reversed.
(v) Step-fathers – The law was changed in 2005 to permit step-parents (but not grandparents) to have an automatic right to apply to the Court for PR. Prior to this change they had to ask ‘permission of the Court to apply’, a two-stage process. Thus a mother can now support her new partner in obtaining PR for the children. If the real father objects and it went to Court, no doubt the Judge would grant the PR to the step-father. Having done so, all subsequent Court issues would be ‘two against one’. Thus the real father would be out-voted.
(vi) GrandParents – Theoretically, anyone can apply for PR and this includes grandparents. They have no automatic right to do so, requiring ‘permission of the Court’ to bring an application. This means it is a two-stage process, and there are strong calls for their right to apply to be automatic. Apparently, grandparents make up one of the largest groups of (unpaid) carers for children providing about one-third of ‘non-parental’ care time. It is extremely sad that children from broken families can only see the paternal grandparents during the father’s contact time and hence extremely rarely, whilst often the maternal grandparents are used extensively as cheap child care. Additional contact with the paternal grandparents can only occur, if the mother consents.
(vii) IVF – As technology has advanced, so have the number of people who can technically be called ‘parents’. This ‘progress’ has undermined and reduced the role of the ‘biological’ father to that of a ‘sperm donor’. Whilst ‘assisted fertilisation’ (where the mother’s egg and father’s sperm are mixed in a laboratory and successfully fertilised eggs implanted in the mother’s womb) causes no legal or practical problems in determining parentage, when additional people are involved, the problems escalate. For example, who is the ‘mother’ when egg donors are used? Who is the ‘father’ when a sperm donor is used, or sperm taken from a sperm bank? There have been a number of cases on this issue. Until recently, IVF was only available to ‘couples’ and the treatment required the written consent of the father. In a particular case where the relationship broke down after the first failed attempt at IVF, the mother tried to have a second attempt without the partner and was refused as the father’s consent was still needed. She appealed to the Court and (surprisingly) lost! The Judge (reluctantly?) admitting that a change of law was needed to overturn the father’s right (veto?) to consent. Needless to say, legislation was speedily passed to rectify this anomaly and the father’s consent is no longer needed for IVF treatment to continue. It is now available to lesbians and single women (but not to single men or all male couples), all of who have the ‘right’ to have a child without a father.
b) RESIDENCE AND OTHER ORDERS
(i) Residence Orders (RO)
Theoretically, a father can apply for a ‘Residence’ Order (formerly known as custody. In practice, over 90% of single parent households are headed by the mother. Fathers normally only get Residence by default in one of the following ways – the mother dies, runs off with her new partner, or the SS take the children from the mother in extreme circumstances. In other words, the father can only get Residence, if the mother consents or dies.
Theoretically, an application to the Court should be considered on its ‘merits’. In practice, the institutional anti-male discrimination in the Courts (see other article), and particularly the ‘Family’ Courts (See below), makes a fair hearing impossible.
(ii) ‘Shared’ Residency (SR)
The evidence suggests that the more contact that the children have with their father post-separation, the better they do. The children perceive both parents as equally important rather than as now where a mother is somehow the more important parent as she has most ‘parenting time’. It is worth emphasising that there is little or no evidence supporting the idea that mothers are the better parent – it is just ‘presumed’ as somehow being ‘obvious’ that since the mother is ‘designed’ to give birth to the baby that she must therefore be ‘designed’ as the better person for caring for the baby afterwards!
Thus 50-50 ‘shared’ residency is overwhelmingly the ‘best’ solution for the children. It is therefore surprising that it is awarded in less than 1% of cases. The excuse by the Government minister (Rosie Winterton – Minister at the time) when asked this question, stated that ‘it only works where parents agree to it’ and ‘it is not the job of the Court to force parents into Shared residency (I thought it should be!). Interestingly, the commentary in the current Family Law guides for solicitors indicates that the CA was intended to change the perception of a ‘winner’ and ‘loser’ to encourage more shared residency orders than its predecessor! Unfortunately for all children involved, this has not happened.
Shared residency means both parents have between five and nine nights per fortnight. Clearly, for geographic reasons, it may not be possible. Some variations have included one week with mum, one week with dad, or even that the children stay in the same home and the parents changeover. Unfortunately, Judges still believe the feminist myths that children need a ‘settled’ or ‘main’ home and a secondary one. There is little or no evidence to support this ridiculous argument. Further reinforcing the ‘Winner Takes All’ argument, the benefits and tax credits are not divided (see other article), and hence even if you have true shared residency, the parent with 183 nights (normally the mother) will get 100% of the benefits and tax credits associated with having a child and the other parent (normally the father) with 182 nights will get nothing and have the CSA persecuting them as well!
(iii) ‘Contact’ Orders (CO)
The ‘Winner Takes All’ system encourages the notion of one parent – the ‘Winner’ (normally the mother) with a ‘Residence’ Order and the other parent – the ‘Loser’ (normally the father) with a Contact Order. In practice, actual ‘parenting time’ (PT) with the children may be little different for a father with a CO or Shared residency, but they are symbolically different. SR suggests equal treatment; RO and CO suggests winners and losers. The feminist Government says that fathers have little to complain about the FC as less than 1% of CO applications result in zero contact. This may be true, but many of the CO’s result in an Order permitting the father to maintain a relationship with his children by sending a video of himself once per year, or birthday and Christmas cards. One absurd Judge indicated that it was the ‘quality’ of the PT rather than the quantity that mattered! Presumably, one excellent video per year was meant to be better than 52 Sunday visits to McDonalds! Clearly the Judge was living in Lewis Carol’s Alice in Wonderland world! In any case, as is indicated below in the ‘Enforcement’ section of this article, the children would probably never get to see the video anyway.
Theoretically, a CO is by agreement. The preamble to a CO will say – ‘By consent it is agreed that the mother will make the children available for the father to collect on …’ Typically alternate weekends and half the holidays. In practice, in the absence of agreement between the parties, the Courts will order the CO to reflect the mother’s offer, after all, upsetting the mother will upset the children and not be in the children’s best interests. Plus, if the Court ordered something more than the mother was prepared to agree to, se would be more likely to break the order and the Courts are extremely reluctant to punish the mother (see the article on anti-male discrimination in the Courts).
(iv) Specific Issue/Prohibited Steps
c) ‘Family’ Courts (FC)
Other countries (most notably Saudi Arabia) have (rightly) been criticised for having Court hearings in ‘secret’ – with the public and media excluded – but the UK has similar ‘Star Chambers’ and they are known as the ‘Family’ Courts. Only the parents and their legal representatives have traditionally been permitted to enter. Whilst it has been said that ‘Justice must not just be done, it must be seen to be done’, the reverse is also true – ‘Injustice must not be seen’. This ‘injustice’ is practiced daily in the FC. The ‘argument’ in support of this secrecy was based on the absurd notion that they were somehow ‘protecting the interests of the children’. In fact, if the case was appealed to the Court of Appeal, the parties would be identified by the first letter of their names (e.g. Mr A and Ms B – as they are in the youth criminal courts), so why this could not be permitted in the lower Courts is beyond me!
Prior to October 2005, it was ‘Contempt of Court’ (COC) to discuss your FC case with anyone other than your legal representative, without permission of the Court, in a manner that might permit the children to be identified. This made it extremely difficult for ‘litigants-in-person’ (LIP -people with no legal representative) to get help and advice, whether from Citizens Advice Bureaux, fathers’ organisations or even family and friends. Whilst an application for permission was normally granted, the reality was that much of the advice was technically COC. The change in October legalised the practice and permitted discussions with a ‘McKenzie Friend’ (MF). MF’s became popular following widespread dissatisfaction with the legal professions’ institutional anti-father attitude and high cost as well as the discriminatory way that Legal Aid is calculated (see article on ‘tax credits and benefits’). The MF is a (normally) non-legally qualified person who can provide (quietly!) ‘advice and support’ to the LIP. Many fathers’ organisations provide lists of suitable people, many who have greater experience in the FC and can be valuable assets in the unequal fight. MF’s role in the FC is ‘at the Judge’s discretion – they have no automatic right to be present. However, there is now ‘strong’ pressure on Judges to grant MF’s the right to attend (but not to speak on behalf of their ‘clients’) – and fathers have reported success when threatening to walk out of the hearing at the start and appeal the Judge’s refusal to permit the MF to attend. This is one small success of the fathers’ movement.
Effectively, the legal system is only available to the very poor and the very rich. The vast majority in the middle cannot afford the high cost of fighting a whole series of bitter Court cases over many years in a hopeless attempt to achieve slightly more ‘parenting time’. The legal profession has been accused of deliberately prolonging the dispute to make more money out of the parties. The ‘adversarial’ system (where lawyers try to ‘win’ at all costs, by convincing the Judge that their argument is ‘right’ and the other side’s argument is ‘wrong’) in the UK is entirely unsuitable for children cases, where there is no clear ‘winner’ and ‘loser’ in an on-going dispute. Some countries operate an ‘inquisitorial’ system, whereby the Judge asks the questions (‘inquires’) to determine exactly what has happened and the views of the parents. In this system, the parties have little need of legal representation (so presumably the legal profession would not support this approach!). For the FC, this would seem far more appropriate, where the ‘truth’ is usually between the two opposing positions and one person is neither entirely right nor entirely wrong.
There are proposals for changing (slightly) the above system and ‘opening it up’ to (slightly) more publicity. It is possible that a media representative may be allowed to report on the proceedings in a limited and non-identifiable manner – one of the (small) successes of the fathers’ movement, although actually resulting from a much publicized (feminist) solicitor (Cabinet member Harriet Harman’s sister Anita Harman) being suspended from practicing as a result of COC for naming a FC party. (Adversity makes strange bedfellows!)
d) Children’s interests must be paramount
As it clearly states in the CA, in any matter concerning children, ‘the children’s interests must be paramount’. This mantra is used to justify all kinds of absurd actions by the Courts, but is NEVER defined! Everyone is ‘presumed’ to know what it means, without every publicly stating the meaning. S1 of the CA lists all the ‘factors’ to be taken into account, but cases have demonstrated that none of these has priority, but all are relevant. The most glaring absence from the list is the most important – outcomes. I would argue that the role of parents is to bring children up to adulthood such that those children become law-abiding, contributing, independent, happy, healthy (mentally and physically) members of society (you can clearly add further factors to this wish-list). In an ideal world, this should be the guiding principle behind the Court’s decisions. In other words, what can the Court do now to ensure, as far as reasonably possible, that this child or these children have the best chance to fulfill that wish-list? Whilst it is clearly impossible to predict with certainty the outcome for any particular child, there are plenty of studies available to indicate what is the likely outcome for most children in a given set of circumstances and amazingly, these are never used, presumably because they overwhelmingly disagree with the Court’s normal judgments! There is no on-going monitoring of ‘outcomes’ even for the cases heard in that particular Court or by a particular Judge! A Judge can never know whether he was right or wrong in a particular judgment (unless he later sits in a criminal case where the children return as defendants – common if he gets his decision wrong!).
Since the overwhelming result of Court action is a ‘winner’ (normally the mother) and a ‘loser’ (normally the father – and hence the children), with the ‘winner’ getting Residence and the ‘loser’ getting a derisory amount of ‘Contact’ (parenting time), it is amazing that there is no (or negligible) statistical evidence to support this approach as being in the best interests of the children! In fact, the opposite is true! Overwhelmingly, the evidence supports the fact that children do significantly better on all aspects if brought up in a stable two- (biological) parent (married) household. When parents separate, the evidence is overwhelming that children do better if there is on-going substantial involvement by the (biological) father. This is determined in studies by comparing the ‘results’ between children in stable two parent families and those brought up by a single mother. The difference between these two household structures is obvious (only to me, it seems!) – the father! Children brought up in a single mother household are significantly more likely to (see www.civitas.org.uk – The Fatherless Family)
- become criminals,
- play truant from school,
- leave school with lower qualifications,
- become pregnant as teenagers,
- become alcoholics,
- become addicted to drugs,
- commit suicide,
- have mental health problems
- become homeless,
- be abused and become abusers
In summary, all the negatives in society are massively increased without the biological father present. It can therefore only be for reasons related to ‘feminist propaganda’ (and anti-male hysteria) that fathers are denied the chance to be equally responsible for their children (unless the mother consents) after separation, because there are no (or negligible?) studies to support this argument. Recent coverage of (out-going?) Labour Minister John Hutton’s speech stating that the best was to bring up children was with married parents (and hence the worst way with just a single mother?) was greeted hysterically by the feminist news media.
http://news.bbc.co.uk/2/hi/uk_news/politics/5349000.stm
He later ‘made up for it’ by announcing CSA mark 2 with increased powers to pursue ‘absent’ fathers.
http://news.bbc.co.uk/2/hi/programme…am/6166393.stm
The opposition Conservative Party set up a ‘task force’ to look at ‘Social Exclusion’ with former leader Iain Duncan-Smith (IDS) as chairman. They produced a 110-page report entitled ‘Breakdown Britain’ on 11th December 2006.
http://povertydebate.typepad.com/hom…n_brita_1.html
This came to the conclusion that the causes of problems in society were related to five inter-connected factors – family breakdown, indebtedness, addictions, educational failure and worklessness. The report identifies ‘dadlessness’ as one of the major factors in all of these, but fails to identify the causes of this and the responsibility of the feminist Government policies in persecuting and discriminating against fathers in causing this problem. Clearly, IDS is playing to a pro-female media and trying not to annoy them by pointing out that feminism is the main cause of disaster in this country. It will be interesting to see the policies that are proposed to reverse ‘Breakdown Britain’, when these are announced in June 2007.
e) CAFCASS
f) Separation and the ‘de facto’ argument
g) Enforcement of Court Orders
Tags: children, discrimination, father, gender, human rights, mother, parent, unfairness
