SECTION 1 - THE OPERATION OF THE FAMILY COURTS - CASE LAWS AND THE TENDER YEARS DOCTRINE

Family Justice Review

Most fathers who seek to gain access or contact with their children post separation expect the UK family courts to be objective and impartial. Usually, if there is nothing against them, fathers believe they are bound to be granted shared access and contact with their children so they can maintain their parental relationship. However the 2011 UK Family Justice Review found that,

"A minority of children will live in shared care arrangements, spending roughly equal amounts of time in each parent’s household. One study  showed that around 90% reside mainly with one parent. Of this 90%, children typically lived with their mother; only 12% lived with their father following divorce or separation".

One obstacle that still persists in family proceedings, is a psychological theory called 'Maternal Deprivation', more commonly referred to in court as the 'Tender Years' doctrine. Maureen Freely writing in the Guardian described how this operates in the following way

"When making their decisions, many British judges still shy away from the ideal of shared parenting as described in the Children Act and are guided by the 'tender years doctrine'. Dr Hamish Cameron, a consultant child psychiatrist who has served as an expert witness in many cases, describes this as the belief that young children are best off with the parent with the closest resemblance to the Madonna. Where judges sees their first duty as preserving the mother-child dyad, their solution in some intractable cases will be to remove the father from the picture."(Guardian, 'Children first', 27 March, 2002).

Although family proceedings are supposed to be objective and impartial because of this theory many fathers such as the former Home Secretary, and dad, David Blunkett, feel they are discriminated against. As a result he wrote to a personal message, "I am very grateful to all those, like yourself who have written and particularly where you have been able to demonstrate your own thinking from the experiences you have had. Congratulations on your battle.

Bowlby’s theory of attachment led him to believe that there was a critical period for attachment formation. If a separation occurs between mother and infant within the first few years of the child’s life, the bond would be irreversibly broken, leading to severe emotional consequences for the infant in later life. He referred to this disruption of the bond with the mother as Maternal Deprivation. Formal justice requires consistency and Bowlby's theory of Maternal Deprivation provides the framework for the Tender Years doctrine as it is applied by judges who make Case Laws such as,

"It has also been said that it is not a principle but a matter of observation of human nature in the case of upbringing of children of tender years, that given the normal commitment of a father to support the family, the mother, for practical and emotional reasons, is usually the right person to bring up the children". (Per Sir Roualeyn Cumming-Bruce in Re H (a minor) 1 FLR 51, CA.1990)

In many cases limited access to children makes a parental relationship impossible and eventually fathers lose contact altogether.

In 2011 the Family Justice Committee of the UK Houses of Parliament reviewed the operation of the family courts in the UK and considered the proposal for a legal presumption of 'Shared Parenting'. However it was decided that;

9.  We do not see any value in inserting a legislative statement reinforcing the importance of the child continuing to have a meaningful relationship with both parents, alongside the need to protect the child from harm, into the Children Act 1989. Such a statement is not intended to change the current position as the law already acknowledges that a meaningful, engaged relationship with both parents is generally in a child's best interests. The Panel has concluded that the family court system is allowing contact in the right cases; in our view nothing should be done that could undermine the paramount importance of the welfare of the child. (Paragraph 71)

Because there is no legal definition of 'reasonable contact' the present status quo remains.

SECTION 2 - JOHN BOWLBY AND THE DISCREDITED THEORY OF 'MATERNAL DEPRIVATION'

Most people might think that they are entitled to equal amounts of time with their children post separation but as Case Laws show this is not always so. These legal precedents form the backbone of the Tender Years doctrine which is routinely used in family proceedings to award custody to the mother and treat the father as a visiting parent. This doctrine is based on the

Dr John Bowlby Father
  of the Attachment 
  Theory? PART ONE

psychological theory of 'Maternal Deprivation', developed by Dr John Bowlby who said,

"Children who either have no permanent mother figure or who are separated for long periods from their mothers, for instance by evacuation or prolonged hospitalisation, are apt to suffer from a severe inhibition of feelings of love. Such inhibition will lead to varying degrees of inhibition in the growth of conscience". (Why Delinquency? p35, Report of a Conference on the Scientific Study of Juvenile Delinquency, London, 1949) 

Case Laws in UK
  Family Proceedings
  Shared Parenting

Crucially in Bowlby's later publication 'Maternal Care and Mental Health' (1951), which was prepared at the behest of the World Health Organisation, he linked the act of mothering to the state of mental health in children. 

"What is believed to be essential for mental health is that the infant and young child should experience a warm, intimate, and continuous relationship with his mother (or permanent mother substitute) in which both find satisfaction and enjoyment...It is this complex, rich and rewarding relationship with the mother in the early years, varied in countless ways by the relations with the father and with siblings, that child psychiatrists and many others now believe to underlie the development of character and mental health" (p11) .

Many child health care professionals even at the time did not agree with Bowlby's theory and his ideas caused such a furor that the World Health Organisation was obliged to publish a clarification called, 'Deprivation of Maternal Care: Reassessed' (1961). Nevertheless his ideas of child development served the interests of the government at the end of the Second World War which used his theory to encourage women to stay at home to look after the children and release jobs for returning servicemen. 

It is claimed by those who credit Bowlby as the 'Father of the Attachment Theory' that he deliberately talked in terms of a mother 'substitute' because he realised that fathers could also fulfill the same parenting role. But even towards the end of his career he still regarded 'Maternal Care and Mental Health' as his 'Citation Classic' because, 

"It focused attention on the relationship of a young child to the mother as an important determinant of mental health, with far reaching practical implications, and has given rise to widespread controversy and extensive research. For a recent evaluation of the field (by an erstwhile critic) see Rutter." - Citation Classic® 15 December,1986.

The Baroness Richmond, the only female judge of the UK Supreme Court, was more accurate when she described the Bowlby's view in the following way,

Dr John Bowlby Father
   of the Attachment
  Theory? PART TWO

"Professor Sir Michael Rutter qualified the original theory of 'Maternal Deprivation' which had been developed by John Bowlby and expressed for popular consumption in a book called 'Child Care and the Growth of Love'. That theory was that children were damaged by separation from their mother or mother figure. Professor Sir Michael Rutter pointed out that children were not invariably so damaged and that, in any event, other people, including their fathers, are also very important to children"(8 June, 2000).

Nevertheless whether it is called the Tender Years doctrine or 'Maternal Deprivation' it is still Bowlby's theory that prevails because Judges are, 'loath to deprive small children of their mothers'. (Clare Dyer,  Guardian, 'New law may boost rights for fathers', 29 October, 2001).

SECTION 3 - CASE LAWS IN UK FAMILY PROCEEDINGS

According to Baroness Richmond, a member of the UK Supreme Court and an 'architect' of the Children Act 1989 this primary legislation was intended to make Family Law more 'child-centred',

"One of the purposes of the Children Act 1989 was to redress the balance: to promote a more equal sharing of responsibility for children between mothers and fathers and to promote the maintenance a good relationship as possible between children and each of their parents should, unhappily, their parents not be living together"(4 February 2003).

However as well as primary legislation there is secondary legislation in the form of Case Laws made by judges in the High Court and Court of Appeal, and now the Supreme Court. Formal justice requires 'consistency' therefore judges in the lower courts must adhere to the ratio decidendi, or rationale of previous cases and follow the stare decisis or precedents established by prior decisions in the same level or higher courts.

As a result sometimes case laws build up on the back of an assumption made in a previous precedent, like a House of Cards. For example, in a judgment made by Sir Roualeyn Cumming-Bruce it was stated that,

"It has also been said that it is not a principle but a matter of observation of human nature in the case of upbringing of children of tender years, that given the normal commitment of a father to support the family, the mother, for practical and emotional reasons, is usually the right person to bring up the children". (Per Sir Roualeyn Cumming-Bruce in Re H (a minor) 1 FLR 51, CA.1990)

Following this judgment, the former Master of the Rolls, Lord Donaldson, in 1992, set a precedent which has been described as a 'cornerstone' of family proceedings,

Case Laws in UK
  Family Proceedings
  Shared Parenting

"At the risk of being told by academics hereafter that my views are contrary to well-established authority, I think that there is a rebuttable presumption of fact that the best interests of a baby are best served by being with its mother, and I stress the word 'baby'. When we are moving on to whatever age it may be appropriate to describe the baby as having become a child, different considerations may well apply. But as far as babies are concerned, the starting point is, I think, that it should be with its mother". (Lord Donaldson MR, Re D (A Minor) (Residence Order, 1992) 2 FLR 332, 336. CA).

In the same year Lord Donaldson made his precedent the 'academic' Professor Sir Michael Rutter, was knighted for his contribution to children's welfare. He found that fathers can be equally important as mothers even to small children and 'most important of all there has been repeated findings that many children are not damaged by deprivation. ('Maternal Deprivation; Reassessed, Second Edition, 1981, p217).

Lord Donaldson made his precedent despite the work of the 'academic' Professor Sir Michael Rutter and 'well-established authority.' Instead these two Case Laws form the backbone of what is described in UK family proceedings, as well as other jurisdictions around the World, as the 'Tender Years' doctrine which is the legal authority or justification for judges in the lower courts to award access and custody to mothers.

SECTION 4 - PARENTAL ALIENATION AND PARENTAL ALIENATION SYNDROME PAS

Parental Alienation is the process by which one parent, usually the mother, turns a child against the other parent in disputes regarding custody or access. This maybe simply achieved by telling the children falsehoods, such as when the other parent is unable to attend a 'contact' session that 'they did not want to

The Boy Who Cried 

    Wolf Parental Alienation

see them'.

In 2010 Re S (A Child - Transfer of Residence) (See below) the judge recognised that 'The concept of alienation as a feature of some high conflict parental disputes may today be regarded as mainstream'.

The Baroness Hayman, representing the UK Department of Health in 1999 described parental alienation in the following way, 

"Most practitioners would consider denigration of one parent by the other to be emotionally abusive but if the child was otherwise well cared for the court may feel that it is in the child's best interests to remain with the denigrating parent, leaving the denigrated parent understandably aggrieved".

One way of tackling the condition maybe by recognising parental alienation as a medical condition. In this letter to a UK MP who was writing on behalf of a concerned father, the Baroness Haymen clarifies the issue; 

DEPARTMENT OF HEALTH

Richmond House, 79 Whitehall London, SWIA 2NS, Telephone 0171 2103000

From the Parliamentary Under Secretary of State

David Faber Esq MP

15 APR 1999

Thank you for your letter of 11 March 1999 enclosing a copy of further
correspondence from your constituent (name and address supplied) about Parent Alienation Syndrome (PAS).

Before I give answers to the specific questions it may be helpful if I offer some general comments on Parent Alienation Syndrome and its classification.

Parent Alienation Syndrome is a relatively new concept, but would come under the rubric of emotional abuse. That parental conflict is damaging to children is well known, but this constellation of parental behaviours does not constitute a childhood psychiatric disorder.

There are two main classification systems for medical disorders: DSM W, which is the American system, and ICD 10, which is more commonly used by British clinicians. These systems do not completely correspond to each other, but Parent Alienation Syndrome is not mentioned in either.

Child psychiatrists using ICD 10 would formulate a "five axis diagnosis", where axis one names a psychiatric disorder (e.g. depression); axis two any specific disorders of psychological development (e.g. specific reading retardation); axis 3, general intelligence (e.g. IQ); axis 4 any relevant physical disorder, and axis 5 relevant psycho social risk factors. Under this last axis, Parent Alienation Syndrome would be classified under "inadequate or distorted intra-familial communication".

This type of systematic destruction of a child's relationship with one of its parents constitutes emotional abuse, but there seems little to be gained by researching it separately

I can offer the following comments on these questions.

1/  How does a disorder become recognised in ICD?

The World Health Organisation has a committee of experts in each medical field, who produce diagnostic criteria, which are updated at regular intervals. ICD is now in its 10th edition.

2/ Has any research been conducted in this country regarding the emotional and psychological effects of PAS on children?

A literature search of PAS over the last 5 years, yielded one article from "Allington Manor School and Treatment Centre; Centre for the Diagnosis and Treatment of Emotional-Behavioural Problems, in Hampshire, entitled "PAS: a two-step approach toward a solution.

Otherwise literature is published in American Journals by American researchers. However, there has been a great deal of work on both sides of the Atlantic examining the impact of parental conflict, separation and divorce on children.

3/ Does the Government have any plans to recognise PAS as a disorder in this country?

As stated above, this type of parental behaviour is a risk factor for disorder, rather than a disorder in its own right. Most risk factors for childhood psychiatric disorder are non-specific, and this type of parental conflict/emotional abuse is likely to be no different. Thus there is little to be gained by considering PAS separately.

4/ Is there any help for children In this country if PAS is suspected?

As stated above, the destruction of the child's relationship with one parent by the other constitutes emotional abuse, and as such the child's welfare would be protected under the terms of the Children Act, 1989.

If the child was sufficiently distressed by the situation, there are various voluntary agencies who could offer counselling and support or a referral to local child and adolescent mental health services could be considered.

5/ Are there any plans to train Family Court Welfare Officers that are involved with contact disputes on PAS, as the ascertaInable wishes and feelings of the child carry a great deal of weight In the Welfare Checklist In Section 1(3) of the Children Act 1989?

I think this would be a local decision bearing in mind that PAS disputes are relatively rare.

6/ Could PAS but regarded as a legal form of emotional abuse?

Categories of abuse for registration (p48 of "Working together under the Children Act 1989") defines emotional abuse as "actual or likely severe adverse effect on the emotional and behavioural development of a child caused by persistent or severe emotional ill-treatment or rejection". This does not have statutory force, but offers guidance to professionals working in this area. The Children Act itself does not define abuse more specifically. Most practitioners would consider denigration of one parent by the other to be emotionally abusive but if the child was otherwise well cared for the court may feel that it is in the child's best interests to remain with the denigrating parent, leaving the denigrated parent understandably aggrieved.

Signed

THE BARONESS HAYMAN

SECTION 5 - SHARED PARENTING LEGISLATION

Maureen Freely writing in the, Guardian, describes the principle of shared parenting in the following way,

Fathers and the
   Department of Social
  Policy and Intervention
   at Oxford University

"Shared parenting as practised today is a flexible concept. It can mean that all care is shared 50-50, or that children spend 80% of the time in one house and 20% in the other. Most families do the fine print by themselves. Its only when they can't agree they end up in court. When they do, their case will be considered according to its own merits. But certain rules of thumb remain. When making their decisions, many British judges still shy away from the ideal of shared parenting as described in the Children Act and are guided by the 'Tender Years doctrine'. Dr Hamish Cameron, a consultant child psychiatrist who has served as an expert witness in many cases, describes this as the belief that young children are best off with the parent with the closest resemblance to the Madonna. Where judges sees their first duty as preserving the mother-child dyad, their solution in some intractable cases will be to remove the father from the picture."(Guardian, 'Children first', 27 March, 2002).

According to Baroness Richmond, an architect of the Children Act 1989, one of the principles of the legislation was to,

"Redress the balance: to promote a more equal sharing of responsibility for children between mothers and fathers and to promote the maintenance a good relationship as possible between children and each of their parents should, unhappily, their parents not be living together"(4 February 2003).

Yet unfortunately  the situation has not changed since  Maureen Freely's article was published and British judges still shy away from the ideal of shared parenting as described in the Children Act and are instead guided by the 'Tender Years doctrine' reinforced by Case Laws. 

Two Private Members’ Bills were introduced to Parliament in 2011 that although different in content, sought to introduce a default position that children should spend a substantial amount of time with both parents in the event of separation. However the the Family Justice Committee decided on the basis of a review of the operation of the Family Courts in 2011 that,

9. We do not see any value in inserting a legislative statement reinforcing the importance of the child continuing to have a meaningful relationship with both parents, alongside the need to protect the child from harm, into the Children Act 1989. Such a statement is not intended to change the current position as the law already acknowledges that a meaningful, engaged relationship with both parents is generally in a child's best interests. The Panel has concluded that the family court system is allowing contact in the right cases; in our view nothing should be done that could undermine the paramount importance of the welfare of the child. (Paragraph 71)

As a result a minority of children in private family law proceedings live in shared care, with one study showing that roughly 90% lived with their mother following divorce or separation.

SECTION 6 - CAFCASS - CHILDREN AND FAMILY COURT ADVISORY AND SUPPORT SERVICE

The work of
 CAFCASS

Research constantly emphasises the importance of both parents to the emotional and psychological development of children. Therefore fathers might expect support from CAFCASS or the Children and Family Court Advisory and Support Service, formerly known as the Family Court Welfare Service.

Usually a member of CAFCASS will only be appointed by the judge if he feels there is a welfare issue. Nevertheless many fathers feel that, if there is nothing against them, any report conducted by CAFCASS is bound to find in their favour. But this is not so.

Family Courts in the UK are not open to the public therefore it is only possible to infer how CAFCASS operates by looking at parallel organisations also working in children's welfare. A government review of the Department for Children, Schools and Families DCSF policies in 2009 found, 'substantial barriers to improving engagement with fathers' in UK family services. According to the EMIE at NFER - Research Briefing (January 2009),

CAFCASS and the
 'Voice of the Child'

"The challenges involved in supporting fathers include that the role fathers play is not always understood, the culture in children's services is often feminised because most of the users and service providers are female, and the significance of fathers' roles is underestimated if they do not live with the family or use a particular service". 

Because of the limited training of CAFCASS officers they take their lead from Case Laws set by judges, like the former Master of the Rolls Lord Donaldson, and it would be churlish to imagine that the same barriers do not extend to the courts.

The following are necessarily anecdotal accounts of the barriers faced by fathers dealing with CAFCASS in family proceedings:- 

Case Study - Father A

I had a bad first day in court. My ex-wife died. I was the legal guardian as I had sole parental responsibility and the police warned my ex wife's family that they had to abide by the law.

However the judge wanted a third party opinion and basically CAFCASS listened for one and half hours to my ex-wife's family saying they had had my son for two years (this was lie number one, as two years before I was in court and my ex wife was awarded residence which coincided with her being diagnosed with cancer) so they ignored the fact that the existing order stated that my son actually live with my ex-wife and when I was interviewed I was given two questions - What makes you think you can look after a child? Do you know that the ex-wife's family is grieving?

Because I answered that my son had coped well and only cried for 10 minutes about his mum, before seeming more normal, CAFCASS stated to the court (I was not allowed to address the judge directly) that my son was best placed with the ex-wife's family arguing that they needed to make a full report. The law stated that I definitely should have my son. However CAFCASS went through the motions of a report and gave me a glowing reference but still recommended at the end of it that my son should live with his auntie (and so I would have had to pay the auntie CSA money) and that I should visit only at weekends (at my expense).

I only 'won' my son because I was able to set the CAFCASS report aside because in my second day at court I had it recorded in the judges notes that the auntie only agreed to look after my son temporarily. I had to remind the judge to read his own notes that he instructed CAFCASS to assess my circumstances for looking after a child, not to make a recommendation which they will always do anyway.

Keep listening to advice about moving the case forward and treading carefully with regards to CAFCASS 

Case Study - Father B

The court recommended that CAFCASS do a report simply because of the false accusations made by my ex-wife.

It took 3 months for CAFCASS to allocate a case officer and 2 months to prepare the report, what with my ex-wife being difficult and my case worker being on leave.

One piece of advice with regards to CAFCASS, don't be too honest about your past and do not volunteer any information about yourself like medical history. Because my childhood was a little difficult they are saying I may pose an emotional threat to my young son!

Don't give CAFCASS and especially your ex-wife's solicitor any ammunition.

SECTION 7 - CAUSES OF UK 2011 AUGUST RIOTS

According to Melanie Phillips writing in the Daily Mail the cause of the 2011 UK riots was Britain's liberal intelligentsia who smashed virtually every social value (Daily Mail, Britain's liberal intelligentsia has smashed virtually every social value, 11th August 2011),

Parental Responsibility
 and the 2011 UK Riots

''The violent anarchy that has taken hold of British cities is the all too predictable outcome of a three-decade liberal experiment which tore up virtually every basic social value. The married two-parent family, educational meritocracy, punishment of criminals, national identity, enforcement of the drugs laws and many more fundamental conventions were all smashed by a liberal intelligentsia hell-bent on a revolutionary transformation of society''.

Mr Cameron also said he wanted to "push further, faster" on policies to improve schools. He asked whether enough was being done to ensure good new schools were set up in the poorest areas, and to hold underperforming schools to account.

The 2011 UK Riots 
 and the 'Blame Game' 
  - 'Sow the wind and 
  reap the whirlwind'

Mr Miliband, leader of the opposition party, also backed the work of family intervention projects and said there were "big issues of parental responsibility". 

But he warned against "wheeling out the old stereotypes and prejudices". 

The 2011 UK August 
    Riots 'Family 
Breakdown and Mass 
   Fatherlessness'

"Some people say it's all about family breakdown, but there are single parents who do a brilliant job and two-parent families who do a terrible job," he said.

"Some people say it's all about the feckless at the bottom, but there are rich families unable to control their kids and poor families who do it very well," he added.

He called for a "national conversation" about the causes of the riots, and warned against "knee-jerk gimmicks".

The Prime Minister Mr Cameron said it was necessary to start with the issues of family and parenting, "If we want to have any hope of mending our broken society".


In future, he said, he wanted a "family test" applied to all domestic policy."If it hurts families, if it undermines commitment, if it tramples over the values that keep people together, or stops families from being together, then we shouldn't do it".

 

COMMENTS

LORD JUSTICE THORPE – Vice President UK Family Division

On 30th July 2004 the author was given the, so far, unique privilege by the UK Court of Appeal to publish the County Court judgments from the family proceedings in his case because of his, 'history of responsible campaigning and writing on issues relating to family relationships'

BUCKINGHAM PALACE
"It was thoughtful of you to enclose a copy of your book 'even Toddlers Need Fathers' and Her Majesty has noted your concerns"

PROFESSOR SIR MICHAEL RUTTER – Author 'Maternal Deprivation Reassessed'

"Very many thanks for sending me a copy of your interesting and informative guide on 'even Toddlers Need Fathers'. I much appreciate your drawing my attention to it"

BARONESS RICHMOND - An architect of the Children Act 1989 and a member of the UK Supreme Court

"The father has a point of view which he wishes to advocate. His Honour Judge Milligan described it as a political point of view, but it is not political in a party-political sense. There are many people who might call it political in the gender political-sense for there are many ways in which that word can be used. He has the view that the courts and the law have been too respectful of the relationship between mothers and their children to the detriment of the importance of the relationship between fathers and their children. He argues that one of the purposes of the Children Act 1989 was to redress the balance: to promote a more equal sharing of responsibility for children between mothers and fathers and to promote the maintenance a good relationship as possible between children and each of their parents should, unhappily, their parents not be living together. The father is correct that that was one of the principles behind the Children Act 1989, in which I take a certain amount of pride".