In recent years the rights of Fathers has become a highly controversial issue. Groups such as father- 4-justice have embarked on hard-hitting campaigns that have attempted to expose discrimination within British Law and the judicial system against the rights of men to have access to their children after divorce. British law, it is argued, is both unequal in this regard and damaging to the welfare of children, fathers and families. In this essay I shall argue that British family law does indeed discriminate against father’s and that the law should be changed. The essay is divided into three main sections: (1) Cultural attitudes to fathers and fatherhood; (2) unequal treatment of fathers within British Family Law and the judicial system that upholds it; (3) the social and pyschological consequences of descrimination aagainst fathers and thus why/how the law should be changed.
Cultural attitidues to fathers and fatherhood
For centuries the dominant conception of the role of fathers was as the breadwinner who would provide for his wife and children. The role of women was to maintain the family home and care for the children. This division of roles was, and still is in some quarters, supported by natural law, scientific reason or religious belief. In other words, the traditional division of roles between men and women was either divinely ordained or it was simply the natural, biological order. Until recently, this division of roles enabled, in western societies, a patriarchal order. Men’s role enabled them to control the structures of power within society and thus the lmited rights of women. Family issues were largely a private matter and to a considerable extent beyond the jurisdiction of the law.
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Since the 1960’s however this patriarchal order has to a significant extent been diminished. The sexual liberation of women, the advancement of women in public life and secularisation has brought about a different set of cultural attitudes regarding the familial roles of men and women. However, this shift in cultural attitudes has not led to quite as much change in relation to the conception of the role of men. To be sure, it is now widely thought that men need not neccessarily be the main breadwinners and that they should carry out their fair share of household and child-caring duties.
However, it is still widely believed, it would seem, that men are not as capable of caring for children as women are. For many women, it seems, the main function of men is as sexual partners and sperm donors. Once they have provided sperm, they are, for an increasing number of women, disposable. After all, women’s own increased financial security and the security provided by the state means that that they are not needed for financial support. As the following section attempts to demonstrate, this perception of the role of men is supported by the law.
The unequal treatement of fathers in British Law
Family Law: divorce
Clearly, the point at which the rights of fathers becomes an issue is when marraiges or cohabitation breaks down. Given the unequal treatment of fathers that will be accounted for below, it is perhaps unsurprising that most requests for divorce are brought by women, some 80% in fact (Gross, 2004) It could be argued that the high rate of divorce has actually been encouraged by the ease with which it is now possible to obtain a divorce. The 1996 Family Law act introduced the no fault divorce (Oldham, 2004). This means that so long as one party believes that the ‘marraige is over’ the other party must accept that this is the case. Furthermore, the partner who requests divorce does not have to give any justification for the request for a divorce. To be sure, there is a provision for marraige counselling and mediation, which must have been exhuasted before divorce can be accepted (Oldham, 2004). However, there is very little power to enforce these measures and in any case once it has reached this stage it is unlikely that the marraige can be recovered. In theory, the no fault divorce is all well and good. Why should one partner be kept within a marraige that they are unhappy with. Surely, it cannot be good for the welfare of children if their parents do not get on with each other or if one partner is seriously unhappy. That said however, it could be argued that the ease with which it is possible to obtain a divorce has further diminished the rights of men. This is because, as will be further explained below, the rights of men to have access to their children, and in terms of the money they are expected to give over to their former wife, is descriminatory. More divorce means more marginalised men. Just as in the past when women were economically and culturally disadvantaged after divorce, so it is now the case for men – except for somewhat differing reasons.
Custody rights
The 1996 Family Law act states that of paramount importance in allocating the custody rights of parents after divorce is the welfare of the children (Oldham, 2004). The problem is however that men and women are not considered equal in relation to their chances of ensuring the welfare of children. Indeed, neither parent actually has a right in law to see their own children but the resident parent – i.e the women, is significantly advantaged. This is supported by the childrens act of 1989. This act carries no presumption whatsoever that the father should have rights to see his children (Oldham, 2004). All that is conferred by statute is that the father should not be prevented from having contact with his child ‘ at all and forever without some reason’. This means that if a mother seeks to prevent the father from having regular contact with his children she is almost certain to win, regardless. Furthermore, it means that the ‘contact’ can be variously defined from a minimum of supervised contact for an hour in a contact centre once a month.
In fact the childrens act confers the rights of contact upon the children themselves. This means that if the child wishes to see the non-resident parent then his or her wish should be granted. On the other hand however, if the child does not wish to see the non-resident parent then contact will range from non-existent to minimal. Clearly this favours the resident parent because the resident parent is likely to be able to control the actions and wishes of the child.
Family Courts
The settlement of disputes regarding the allocation of contact rights through family courts leads to further descrimination against fathers. To begin with these courts meet in secret. Their delibarations are secret and thus so is the reasoning which led them to arrive at a decision regarding the welfare of the children. The courts only need to refer to guidlines on the childs welfare, nothing else. And in almost every case this is bound to favour the resident parent, the mother (Gross, 2004). In cases where neither parent has been socially deviant, the mother can claim that the child is still not well looked after by the father when he is in custody of the children. Since the issue at hand is ‘how much contact should the father have given the welfare of the child’ and not ‘how is it possible to ensure an equitable, workable child caring arragement given the best interests of the child being contact with both parents’ then the burden is on the father to prove that he can care for the child adequately when in his care. This means that apparently minor concerns such as whether the child returns tired, emotionally upset or late can be raised against the father. It is not taken into account that these concerns can be an evryday normal occurence under the care of the mother. There is no wieghing up of interests – between the fathers rights of contact, the legitimacy of the mothers view of the father and the childs interests. Rather, there is just an attempt to remove possible hinder ant’s to the childs welfare when considering applications for contact (Lockhart, 2001). In cases where there is no contact to begin with then it is unlikley that much further contact will be granted, because contact with the father is not recognised to be in the childs interests beyond those that have been explicitly expressed by the child.
CAFCASS
Family court judges follow the advice of Family Court Welfare Offices. These offices are responsible for the interpretation of the Children Act and Family Policy (Gross, 2004). They provide reports on the welfare of the children based on inspections, interviews with parents and the guidelines. The problem is that the training these officers recieve does not prepare them for judgement in individual cases. This means that judgement is more-or-less removed from the judicial process pertaining to the allocation of custody rights, because judges in family courts merely follow their recommendations. Most crucially the reports can also take into account claims by the mother that the father is violent or abusive towards his children. These claims are not tested through the proper judicial process and can simply remain as a slur on the fathers character. Fathers rights groups claim that such claims should either be subject to criminal charges and thus trial in court or removed utterly. Worse still, fathers do not have the rights and nor does anyone else, to question the Family Court Welfare Officer
Enforcement
In cases where the court has allocated the father a certain amount of contact time and when the mother has failed to meet the requirements there is also very little that can be done to enforce the order. Of course, if the non-resident parent fails to meet the requirements of the order then he could pay a heavy penalty. He could either have his contact entitlements completely removed or worse still fined, ordered to do community service or even imprisoned. There have been numerous cases where the father has been sent to prison for doing apparently harmless things such as sending presents on his childs birthday or waving to the child without gaining prior permission from the relevant authorities (Lockhart, 2001). On the other hand, when the fathers rights of contact have been denied then very little is or can be done because a rather narrow conception of the welfare of the child is the main consideration, which does not include the need for contact with both parents.
Parental Alienation
All of the procedures described above are subject to a condition called Parental Alienation (Hooper). This is when one parent, usuually the resident parent or mother in most cases, encourages the child to reject the non-resident parent. Clearly the resident parent has an advantage in this regard simply because she is with the child more often. According to the Stockholm Syndrome there is a psychological state whereby the captive takes on the beliefs and wishes of the captor and often wilfully and actively complies with them. In family court judgements and in the reports of family court welfare officers, parental alienation syndrome is hardly accounted for at all. This can not only be hurtful to the father it can also lead to the denial of his contact rights.
The Child Support Agency
The Child Support Agency is another instutution that enforces descrimination against fathers. In addition to Fathers being denied access to their children they are forced to pay in most cases around a third of their salary to the resident parent for the care of the child. At a superfical level the principle that non-resident parents should contribute financially to the upbringing of their children seems reasonable enough. However, when it is enforced in addition to a financial settelment after the divorce and a denial of the fathers rights to see his children it can be little short of barbaric, let alone unequal. Let’s deal with the unequal aspect first. The problem is that the agency seeks payement from the ‘absent parent’ which means fathers , universally, because fathers have been labelled as ‘absent’ parents regardless of any other circumstances. Worse still, in cases where the father earns a merely average income it can leave him with no possibility of obtaining another mortgage and limited chances of prusing another familial relationship. This situation can affect fathers who were neither in a married or cohabiting relationship with the mother and may only have known the mother for a short period of time. Since it is entirely the decision of the mother as to whether she has an abortion and at least half the responsibility of the mother to use contraception, this would appear both unfair and open to abuse.
Why the law should be changes?
The reasons provided above should already be ample evidence for why the law ought to changed. But the case is strengthened when we consider the consequences of descrimination against fathers.
Depression
The law offers no protection against fathers who have been denied access to their children, have had most of their assets taken away and who are forced to give over a third of their income. Indeed, the law promotes situations of this type. Therefore, many fathers drift into depression and even suicide. Consider an extreme but all to probable scenario. After a divorce settlement brought about by continued acts of adultery, the mother decides that in order to guarantee her own best interests she lies to the welfare officer and the courts about the fathers violent and neglegant behaviour and encourages the child to do likewise. This accusation remains untried and untested but leads to the welfare officer producing an unfavourable report for the family court. Despite wanting to attempt to repair the marraige the father, who has already been forced to give up the family home and other assets, is ordered to remain out of contact with his children, who on the mothers instruction have expressed hatred towards him, and then asked to pay maintainence from his earnings for the childrens wlefare. He is then left alone, with only the means for basic self-substistence, without any contact with his children who he has been told do not want to see him anyway. The chances of surviving such a scenario without suffering severe depression would seem unlikely.
Effects on children
Whilst the welfare of the children is supposed to be of paramount concern to the law and the judges that implement it, the consequences for children of having limited contact with the father are rarely accounted for. Gone are the days when there was a widely accepted scientific consensus that deemed men naturally incapable of caring for children and when children were considered to be psychologically and emotionally dependent on the mother but not on the father. However, there remains relative silence about the effects on children as a result of fatherless families because it is considered offensive to one parent families, and to ethnic groups within which there is a propensity towards one-parent families. There is however, research that suggests that fathers have a positive impact on the lives and cognitive development of their children (Lockhart, 2001). Likewise there is also research that suggests that children with absent fathers are more likely to become socially deviant.
Furthermore, the law offers little protection against children who are forced to remain in the care of unfit mothers – who, despite their protestation that the father is neglegant or violent are unfit themselves to be the carer of the child. This is partly because the fathers views on this matter are not considered and it may only be the father who is capable of forming them, since social care professionals are unlikely to have gained the level of access and knowledge needed to be able to make such a judgement.
Are fathers rights human rights?
Many campaigners on human rights have argued that the right of a father to have contact with his children should be considered a human right. If a human right is a right pertaining to the ability of a human being to live with basic human needs then surely the ability of fathers to have contact with children should be a human right. What could be more essential to a reasonable human existence than to have contact with and at least knowledge of ones children, for both parents. For most caring, responsible parents this is in fact more essential to a reasonable human existence than access to food or shelter. It is prior to all other needs and aspirations. Moreover, if there is any such thing as human rights then the right to regular contact with ones children should be the most fundamental of these rights.
However, proclaiming the rights of fathers as human rights is possibly not the best way to attempt to establish such rights. Firstly, this is because, strategically, human rights declarations are often so vague and potentially contradictory that they can be overturned by the particular legal and political system that is supposed to protect them. One of the reasons for this is that it is notoriously difficult to prove, philosophically, what is a universal human right. Such a possibility is to a significant extent dependent upon the philosophical credibility of a conception of humaness, which will always be highly contested. Perhaps it would be better therefore to concentrate on conceptions of legal equality, citizenship and the good of society than proclaiming fathers rights as human rights. It would be better to argue that in a democratic society fathers should at the very least be given the right to defend their rights to have contact with their children in legitimate courts of law.
Paths to the reform of family law and its implementation
When considering the ways in which the unequal treament of men in British family law it is best to first concentrate on the unexplored benifits of shared responsibility for children. Why not establish a default conception of the welfare of children which proposes that it is best for the childrenn, when no partner is socially deviant, for both parents to have an equal share of the responsibilities for the child’s care. The objection to this has been that it is too disruptive for the child, emotionally and in other practical respects, for the child to be regularly moving from one abode to another. But is this really the case? Clearly, very little research has been carried out on the potential effects of such an arrangement since it is hardly ever pursued.
Another avenue for reform could be to radically improve the training of welfare officers. This would be a fairly simple and much less complicated measure that introducing a new family law. Welfare officers could at least be trained more specifically to detect the existence of parental alienation. To be sure this is not just a matter of training it would also involve putting the issue on the welfare checklist. Additionally, allegations of domestic violence and neglect ought to be removed from consideration unless they are proven. Some would argue that certain cases of domestic violence are hard to prove in court which would make children more vulnerable. But at least the burden of proof in respect to the suitability of fathers to care for children should be much tougher than it is at present.
These would be piecemeal advances, but if the law is to truly treat men and women equally there needs to be a wholly new act. Such an act would not just be introduced to protect the rights of fathers, but to better protect the institution of the family and the welfare of children.
Conclusion
In conclusion we can say that for several reasons British family law unfairly descriminates against fathers. Firstly, there is no provision for the rights of fathers in family law – in case or statute law. Secondly, the non-resident parents access to the child is dependent upon the consent of the child, which is bound to favour the resident parent, especially if there is implacable hostility between the two parents. Thirdly, the judicial system that upholds family law also, institutionally, descriminates against men. This is because deliberation is made in secret and family welfare officers cannot be questioned, which simply maintains inequality within the law because it precludes the fathers point of view. For these reasons, and because the alienation of fathers can lead to depression and unfavourable effects on the children, the law should indeed be changed.
Bibliography
Robert C Lockhart Fathers Have Rights Too, Writers Club Press 2001
C A Hooper Do Families Need Fathers
James T Gross Fathers Rights: A legal guide to protecting the best interests of your children. Sphinx 2004
Mike Oldham Statutes on Family Law, Oxford University Press 2004
www.fathers-4-justice.org
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