Something rather remarkable happened in the House of Commons last Tuesday (28th March 2017). Suella Fernandes, Conservative MP for Fareham, presented her proposals for a Private Members Bill on reform of Family Justice. The proposals – reviewed below – are hard-hitting, surprisingly so for an initiative emerging from within Parliament. They have received the blessing of Fathers4Justice (F4J) and Families Need Fathers Both Parents Matter Cymru (FNF-BPM), though not all parties are as impressed, e.g., the Transparency Project (however, see the Comment by Lucy Reed, below).
There is every reason for UK readers to sit up and take notice – and perhaps take action (more of which below). However, lest we all get carried away on a tide of optimism, let’s inject some realism straight away. Private Members’ Bills rarely make the statute book (the Bill to ratify the Istanbul Convention is a rare exception – and even that may not be the plain sailing I had assumed). It is by no means the first time that the idea of actual justice in the family courts has been voiced as a possibility in Parliament (shock horror). George Galloway introduced an Early Day Motion in 2013, criticising the egregiously secret nature of the family courts and calling for the ‘maximising of reasonable access’ in the interests of the children. It was supported by 104 MPs’ signatures.
So it will be of considerable interest to see how far along the Parliamentary gauntlet Suella Fernandes’s Bill manages to run. On the positive side, the Bill is ‘taken to have had its first reading’ (as opposed to being unceremoniously chucked out immediately) and has a second reading scheduled for 12th May 2017. Keep up to date with it here.
Private members Bills are sometimes used to gauge the mood of Parliament to an idea. Governments do not like their own Bills being voted down. That would be interpreted as ‘failing’ – such is the adversarial nature of the political process. So a Private Member’s Bill can be used as a stalking horse. My guess is that is what we are looking at here. If it bombs we may not see its like again for a long time. But if it is received warmly by the Honourable Friends, even if ultimately dropped, might we see a government sponsored paper emerge in its wake? It’s hard to be optimistic given the support for men’s issues being notable for its absence in Parliament to-date. However, the fact that this Bill has emerged at all suggests there are currents of opinion within Westminster which are normally kept below the radar. And there are other signs that the cultural narrative in Parliament is shifting on the matter of fathers.
As yet there is no written Bill as such, though one is likely to be produced prior to the second reading. The following account is taken from the Hansard record of the first reading (the presentation by Suella Fernandes under the Ten Minute Rule).
After reading it – and assuming you agree that this Bill deserves support – then to action. If there are green shoots of possibility here, we should nurture them, I suggest. Write to your own MP and ask them to consider supporting Fernandes’s Bill on the 12th May. How else are MPs to know about the public’s strength of feeling on the matter? Spread the word – suggest that others you know do the same.
You may wish to mention Baroness Deech’s Bill “Divorce (Financial Provision)” as well.
The easiest web site to use to identify, and write to, your MP is http://www.writetothem.com (failing that try this one). But old-fashioned hardcopy letters sent by post have a greater impact – and a face-to-face meeting with an MP even more so.
Precis of Suella Fernandes’s Family Justice Bill
The Bill was presented by Suella Fernandes, Mrs Cheryl Gillan, Andrew Selous, Tim Loughton, Robert Neill, Frank Field, Caroline Ansell, Mrs Anne-Marie Trevelyan, Lucy Allan, Mr David Burrowes, Kate Hoey and Mr David Lammy.
While we wait for the wording of the draft Bill itself, the Hansard record of the first reading indicates that the purpose is,
To bring in a Bill to make provision for the enforcement of Child Arrangement Orders, including times within which enforcement action must take place; to establish a presumption in favour of shared parenting under Child Arrangement Orders; and to make provision for a commission to review and make recommendations on the operation of family justice; and for connected purposes.
Elaboration follows, and is strikingly blunt, alluding to what we have known for decades but not usually voiced in centres of power,
Child arrangement orders are made by the court to regulate the contact and residence of children on divorce. In the majority of divorces, the orders are complied with, but in many cases a defaulting parent – that may be the mother or the father – can generally act with impunity. The courts are slow to respond and reluctant to penalise, sending the damaging message that court orders are optional, not mandatory; that the relationship with the non-resident parent is meaningless, rather than crucial; and that the system is inherently inequitable, rather than robust. In the worst cases, a non-resident parent, usually the father, can be denied contact with their child for several years. If they do not have a spare £10,000 to spend on legal fees, they are essentially erased out of their child’s life, with no remedy whatsoever. How can this be humane for a child, and how can it be fair to the parent?
A further well known truth which has hitherto been Incorrect to discuss is the damage done to children by fatherlessness and alienation,
The welfare of the child is paramount—that is an abiding and unassailable principle of family law—and children are less likely to experience depression, teenage pregnancy and delinquency when relationships with both parents are safeguarded, while children without a father in their life often struggle to reach their full potential academically, socially and professionally, but the law does not reflect this because of the failure to crack down on intransigent parents, and because judges and social workers turn a blind eye to parental alienation.
Data from the Ministry of Justice reveal that a mere 1.2% of the 4,654 enforcement applications were successful in 2015. Although the letter of the law sets out discretionary penalties for breach, they are rarely applied in practice, and the rise in the number of unfounded allegations of domestic violence as a defence against enforcement is worrying.
The concerns I raised in one of my recent posts regarding legal aid and the role of domestic violence in the family courts is being expressed clearly here – at last, you might say. The robustness of the next paragraph is extremely striking,
A new approach is needed: a tougher three strikes approach is long overdue, under which residence should be transferred, if that is safe, and community service should actually, not theoretically, be imposed on parents who are in breach. The confiscation of driving licences or passports should seriously be considered by Parliament. Legislation that emphasises the importance of both parents in children’s lives, other than in cases of violence, is needed in England and Wales. Real enforcement is one way of doing this, and shared parenting is another.
A rebuttable presumption of shared parenting should be a key principle when determining the contact and residence of the children. To be clear, this would not be an explicit statement of an equal 50:50 time division, and it does not mean shared care. As Professor Patrick Parkinson, a former president of the International Society of Family Law has made clear, it should, as a minimum, mean the child has a right to a meaningful relationship with both parents as far as practicable, and as long as the safety of the child is not put at risk.
I suspect most readers of this blog will agree with the principle of the above, as do I. Personally I would be cautious about certain punishments. Removal of a driving licence has been widely used in the USA as a punishment for non-payment of child maintenance, resulting in the father loosing his job and hence being unable to pay, a situation which helps no one. Let’s not repeat that sort of mistake, and let’s recall that the objective is for the child to have a meaningful relationship with both parents. The objective is to make a belligerent parent accept this requirement, not to punish per se.
The other obvious difficulty is that, whilst there must be a proviso on access “if it is safe”, any new provision must be tailored to avoid the problem with this ruling under the current arrangements – namely the widespread abuse of it to which Fernandes’s words themselves explicitly allude. This will have to be the focus of realistic attention if this Bill, or some successor to it, is to truly alleviate the current distress.
Perhaps most encouraging of all is the plea that the objective should be to “encourage the love, affection, and contact between the children and the parents”, rather than the dry, functional business of “parental involvement…direct or indirect”, which is the current legal stance. But then, lawyers don’t do love & affection – not at work anyway. I am minded of the advice offered to Bob Geldof when entering the family court, “on no account say you love your children, it’s seen as too extreme”.
Fernandes notes that, “non-resident parents, mainly fathers, can be airbrushed out of the lives of their children by the current system. We cannot keep telling fathers that they have equal responsibilities, and then not give them equal opportunity to carry them out.” Quite.
She then goes on to recommend that “a commission, to last no more than one year, should be launched by the Government to inquire into the following issues and to report back with recommendations for reform” and lists five issues. These are, in my words,
- No fault divorce;
- Financial remedies on divorce;
- Rights for cohabiting couples;
- Enforceability of prenuptial agreements;
- End the secrecy of family courts.
Many will demur at no-fault divorces, citing much of our present mess on the frequency of divorce. But don’t we all but have it already, in all but name? The focus now is on making divorce less of a mess when it happens, rather than vainly attempting to stop it happening.
The introduction of marriage-like rights to cohabitation is likely to lead to less cohabitation and a reduction in childbirth outside of marriage. Personally I regard this as a positive thing, but others may disagree.
The remaining three issues are all unambiguously positive. Financial remedies, said Fernandes, are, “rooted in a bygone era where women were entirely financially dependent on their husbands. The reality today is that many women are able to support themselves, so divorce should not mean an automatic entitlement to lifetime support from an ex-husband“. Quite. And Baroness Deech has already taken up this cause in her “Divorce (Financial Provision) Bill“.
In addition to the injustices perpetrated within the family courts being prevented from exposure by their secrecy, Fernandes notes that, “Far too many children are taken into care for wholly inadequate and poorly argued reasons….Only the glare of publicity will enable this to stop, so we need to remove the cloak of secrecy and to open up our family courts.” (Do note that Suella Fernandes was a barrister in the civil courts for 10 years).
So, why has a lobby in Parliament suddenly arisen which would seek to overturn the woman-centric operation of family justice? One would like to think that it is motivated by a concern to actually deliver on the existing obligation to put the interests of the child first. And it probably is. One would like to think that it is motivated by a genuine desire for fairness in recognition that the present situation is grossly unfair. And it may be. But a cynic will look for other reasons.
Baroness Deech notes that, “The current law has a reputation for putting people off getting married because it is so arbitrary.” The Baroness notes the role of the withdrawal of legal aid from civil cases as exacerbating the problems, as does Fernandes. There is more than a hint of political will to rein in judicial power about all this. Baroness Deech goes as far as to allude to financial vested interests, “there are also a few solicitors with a vested interest in no reform because their task of leading couples through the maze of the existing law is very well paid“. Deech, like Fernandes, is also in favour of enforceable prenuptual agreements, arguing that they actually encourage marriage in some circumstances, and do not lead to higher divorce rates.
But the most cynical presumption is that reform in divorce financial provision is seen as desirable suddenly because women are now out-earning men. Baroness Deech said,
“Women want reform, for there is a growing number of wives who are better off than their husbands and resent, even more than men do, having to give what they see as a disproportionate amount of their hard-earned assets to the man who left them.”
But even more than financial considerations post-divorce, it may be that younger women are now becoming impacted by a male reluctance to marry – promoted by an increasing appreciation by young men that marriage under existing arrangements is disadvantageous for them. The triumph of the MGTOW, you might say – though very few of these non-marrying men will actually be ideologically MGTOW. So has the discontent of reluctantly single women made itself felt in Parliament? Is this where these Bills have truly originated? I know not. But the decline of marriage in the lower socioeconomic classes is certainly beyond doubt.
The catastrophic decline in marriage is best illustrated by the proportion of unmarried people who get married per year, Figure 1 (from 2013 ONS data). In 1970, 80 out of every 1000 unmarried men got married per year. By 2010 this had fallen to just 20, one-quarter of its peak rate. The start of the decline coincides with the emergence of second wave feminism in the UK as a major social and political force (e.g., the publication of The Female Eunuch).
Figure 1 click to enlarge
In part, Figure 1 is a result of people getting married later in life. In 2013 the average age for men marrying was 36.7 years, while for women it was 34.3 years. This compares with 29 and 26 respectively in the mid 1970s. But this is not the entire effect: an increasing percentage of people never get married, as illustrated by the graphic which heads this post. The equivalent graphic for women is shown in Figure 2 ( Data taken from ONS Cohabitation and Cohort Analyses Table 2).
Figure 2 click to enlarge
Extrapolation of the trend suggests that around 45% of UK men, and ~40% of women, in the 1980 birth cohort will never marry at all. Moreover, considering the data for birth cohorts 1960, 1970 and 1980, if the trend continues then the 1990 birth cohort will see ~60% of men never marrying at all at any age.
In the Bills put forward by Suella Fernandes and Baroness Deech are we seeing Parliament’s first stirrings to halt and reverse this decline in marriage? If so, will it work – if not with these Bills, then with later attempts for which they prepare the ground? Or has the rot become too firmly established for any easy reversal?
There will be a quid pro quo if these changes are to be successfully implemented. They will be made hand-in-hand with initiatives currently more obviously associated with feminist policies, namely paid paternal leave and greater flexibility in male employment to facilitate a increased role of fathers in childcare. From the feminist perspective the purpose of these societal changes is to empower women – by increasing further women’s penetration in the workplace, particularly in senior positions. You are welcome, ladies – work is not freedom.
But from a man’s perspective, an increasing involvement in childcare cannot merely mean drudgery under the commanding eye of the mother. Being a father is not being a nanny. Nor is a greater presence of men in the home some weird innovation that has never happened in history before. Prior to the industrial revolution there was far less distinction between home and work environments. It was mainly with the industrial revolution that men’s working long hours away from the home caused them to become distanced from the raising of children – to the detriment of both.
What we are truly looking at now is a change in cultural narrative. Men have given ground to women in the workplace over the last half century and it is time for women to do the same in the home. Those who think that it is men who must do the bulk of the changing in this respect are wrong: it is women. For women must now start to relinquish part of their domestic power.