Unusually for family court issues, this particular news story has been
publicised widely, firstly because it involved a 12-year old girl
(rather than a boy) and secondly because the media were collectively
painting the father as the bad guy (as usual). I saw a newspaper story
headline indicating that the child had been ‘abducted by her father’
to Pakistan. In fact, she was accompanied by her 18 year-old sister on
the flight and appeared to have been travelling willingly. Needless to
say, the UK courts have decided that she should return to her mother.
Notice the above news story has a ’smiling’ girl pictured with her
mother – surely the papers are not taking sides???
So what is wrong with the family courts?
1) They are secret courts.
Whilst there are proposals to ‘loosen’ the secrecy surrounding what
happens in these ‘Star Chambers’, the current situation is that anyone
who reveals recognisable details about the participants is in contempt
of court, and faces a possible prison sentence for doing so. The rules
on consulting non-lawyers were changed in October 2005, so that
‘Mckenzie friends’ and other Fathers’ groups, for example, could be
consulted about your case, without permission of a Judge, which had
been the previous situation.
The proverb that ‘justice must not just be done, but must be seen to
be done’ has an opposite view -’injustice must not be seen’
2) The Balance of Probability
In theory, the family courts are civil courts and as such operate on a
basis that the Judge must determine (as there are no juries) who he
believes on the ‘balance of probability’. In other words, which person
is more likely to be telling the truth. As most family court judges
spend much of their time on criminal matters, it would be extremely
surprising if their prejudices were different in the family courts
than when operating in the criminal courts. As you may have read from
the previous article, the criminal courts are institutionally
anti-male. Thus in family issues, there is usually no third party to
provide objective evidence, and hence the judge must choose between
the male and female perspectives. Since the judges are overwhelmingly
anti-male and pro-female, it is not surprising that they prefer the
female perspective.
You can now view the guidance given to magistrates and judges online
http://www.jsboard.co.uk/family_law/index.htm
It is particularly interesting to read the guidance regarding women in
general and victims of domestic violence (perceived by most of the
media and the courts as being a male attacker female victim issue when
the evidence is overwhelmingly that it is much more likely to be
similar numbers both ways) which are overwhelmingly along the lines of
‘be nice to the poor women’.
Having spoken to a few barristers with experience of the court arena,
they are also of the view that the courts favour women.
3) The law being upheld – Parental Responsibility
One example of the institutional unfairness to men is included in the
Children Act, 1989 which lays the foundation for all that happens in
the family courts. This created the term ‘parental responsibility’
which encompasses all the powers and responsibilities that parents
have. Without PR you cannot stop your child leaving the country,
changing its name or being adopted (to name but a few). It is the most
important factor when determining ‘control’ of children. The Children
Act states that – Mothers automatically get PR on birth. A father can
only get PR either by – marrying the mother, by agreement with the
mother (the mother’s veto), if the birth is jointly registered after
01/12/03 (with the permission of the mother – she can register on her
own, he cannot – mother’s veto again), or by order of the court. This
discrimination against unmarried fathers was challenged in the courts
and the father lost – the judge said this discrimination was justified
as it distinguished between ‘meritorious and non-meritorious fathers’.
Notice that there is no way of distinguishing between meritorious and
non-meritorious mothers!
4) Making children choose
One of the nastiest aspects of our adversarial system is that the
children are effectively required to ‘choose’ which parent is to be
the main parent. Since the UK system operates on a ‘winner takes all’
basis – that is one parent gets 100% of all the benefits and tax
credits of having a child, the other parent gets nothing and has to
pay up to 25% of his net income to the mother until the child is 19 -
the parent who is the ‘main’ parent is the key. Whilst shared
parenting or joint residency, where both parents get equal time , is
overwhelmingly in the best interests of the children, the courts do
not appear to understand nor favour this system. They erroneously
believe that a child needs a ’settled’ home. There is no evidence to
support this. There is lots of evidence to support the idea that the
more contact a child has with its father post-separation the better he
will do on all aspects of development.
Interestingly, so-called ‘experts’ are appointed to discuss with the
children where they would like to live. usually they visit the child
at the mother’s house and visit the father separately. It would be
surprising if a child in those circumstances said they wanted to live
with dad. I fact a few do. When the judge considers the report – if
the child says they want to live with mum – the judge usually agrees.
If they say they want to live with dad, the judge says that we know
best and of course they didn’t mean it. Children have been dragged
kicking and screaming from dad’s house and given to mum. The child in
the article at the beginning of this piece is likely to be in that
category.
Summary
The system in this country is entirely counter-productive if you
believe it should look at the ‘best interests of the children’.
Nowhere is this defined. It is interpreted to mean ‘we must not do
anything to upset mum’.
Actually I would propose that the courts should be looking at outcomes
- what should we be doing to do whatever we can to ensure the best
chance of these children growing up to become law-abiding,
contributing, healthy members of society. If that was the basis for
decisions based on statistical outcomes rather than deep-rooted
prejudices then there would be hope for the future.
Tags: children, court, discrimination, father, human rights, mother, UK, unfairness
