“Implacably hostile” mothers are a small minority, claims study

Children|September 3rd 2013

As I noted on this blog back in July, a new study has concluded that although “implacably hostile mothers” exist, they represent a relatively small minority of enforcement cases.

Since then the research has been receiving attention on Twitter from family lawyers and others. So it seemed like a good time to take another look at what this study is about, and what findings have been reached.

In England and Wales, enforcement powers can be exercised by courts in child contact cases, when one party does not adhere to a contact order. The provisions for enforcing contact orders were set out in the Children and Adoption Act 2006, which came into force in 2008.

The study, which has been undertaken by the Nuffield Foundation, is called Enforcing Contact Orders: Cases, Courts and Consequences. It examines how and why the family courts respond to applications for enforcement of a Contact Order following alleged non-compliance. Its sample consists of more than 200 enforcement applications made in England in March and April 2012, with cases accessed through the electronic records held by Cafcass.

In advance of the Foundation’s final report, a briefing document has been released, which makes the following key points:

KEY POINTS

1. Relatively few contact cases return to court seeking enforcement – about 1,400 each year – but they are difficult cases for both policymakers and courts to address.

2. The public perception of enforcement cases is of implacably hostile mothers deliberately flouting contact orders and the courts failing to get tough and ensure compliance. The reality in practice is rather more complex

3. Implacably hostile mothers do exist, but they are a small minority of enforcement cases. The most common type of case involved parents whose conflicts with each other prevented them from making a contact order work reliably in practice. The second largest group was cases with significant safety concerns, followed by cases where older children themselves wanted to reduce or stop contact.

4. The approach of the court appeared broadly determined by the case type. A ‘coparenting support’ approach was mostly used with conflict cases as a means to set a clearer framework and help parents communicate. A ‘protective approach’ was used mainly with risk cases. A punitive approach was used primarily with the few cases we classified as implacably hostile.

5. Cases were generally processed quickly over a shorter period and with fewer hearings than the original proceedings, especially for the ‘parental conflict’ cases. That brevity can mean absence of delay in getting contact restarted but it also signaled that some cases were dealt with rather cursorily, with limited attention to the underlying causes and effects of the ongoing dispute.

6. There were a small number of cases where the court could have been more robust in dealing with a non-compliant parent but equally there a few cases where a punitive approach turned out to be inappropriate. There were rather more cases where the court appeared to minimize safety concerns.

7. Adequate punitive sanctions are in place, are mostly used when needed and can secure compliance. Policy attention should now focus on developing more effective measures to support safe contact across the full range of enforcement cases, particularly high conflict cases where both parents need more help to work together to implement an order.

The briefing document can be found here. The lead researcher is Liz Trinder, Professor of Socio-Legal Studies at the University of Exeter.

Although these findings may prove contentious in some quarters (as comments on my previous post have already illustrated), it is difficult to draw informed conclusions before the study has been published in full. In the meantime, however, here are the four main categories into which enforcement cases have been divided:

CONFLICTED (116 cases, 55% of the total) intense competition or chronic levels of mistrust between the parents mean that they are unable to work together to implement the court order. Both parents have greater or less responsibility for the conflict. Minor incidents become flashpoints. Parents are unable to negotiate relatively insignificant changes to contact arrangements to accommodate illness etc. Everyday challenges become insurmountable problems that cannot be resolved without external intervention.

RISK (66 cases, 31% of the total) one or both parents raise significant adult and/or child safeguarding issues, most commonly domestic violence, child physical abuse and neglect, alcohol and drug abuse or mental health issues. These issues may have been raised previously at the index order stage.

REFUSING (21 cases, 10% of the total) an apparently appropriate and reasoned rejection of all or some contact by an older child (10+). Appears to reflect problematic behaviours/lack of sensitivity by the non-resident parent. The resident parent may be neutral or negative about contact but the child’s decision appears genuinely to be their own opinion rather than a simple reflection of the resident parent’s position.

IMPLACABLY HOSTILE/ALIENATING (9 cases, 4% of the total) sustained resistance to contact by the resident parent. The resistance appears unreasonable and is not a response to significant safety concerns or the problematic behaviour of the other parent. In some cases the resident may influence the child so that the child refuses all contact but without well-founded reasons.

Over at Pink Tape, Lucy Reed has crunched the figures and made some pertinent points:

“These percentages mask the fact that the number of applications made for enforcement is pretty low – we have a snapshot only, but only just over 200 were made in England over a 2 month period, approximating we assume to about 100 per month. Compare it to the approximately 46,000 new private law children applications made each year (CAFCASS Stats for y/e Mar 2013), and we can see that enforcement applications are running at around 2.5%. I think it’s a pretty safe bet that contact is not working well or at all in a good deal more than 2.5% of cases, and to me it suggests that applicants (mostly dads) are not applying for enforcement orders. In many cases that may well be because enforcement is very obviously going to be unhelpful or make matters worse. But in some, I sense, that non resident parents are applying back to court for directions, and asking for help from the court in form C2 or by letter, but not making specific applications for “Enforcement Orders” or “Financial Compensation Orders” within the meaning of s11O etc, and they are not doing it on C79. I suspect that this skew the stats – and more importantly the approach the court takes, which is more likely to be a “review hearing” type approach. If there is no C79 s11) is not triggered – there is no power of the courts own motion to make enforcement orders or other associated orders.”

 The final report is due to be published in Autumn 2013.

Author: Stowe Family Law

Comments(12)

  1. Stitchedup says:

    Have I see this on the site before? If I remember correctly it has been pointed out by somebody (not me) that the lead researcher/author has a history of publishing biased/misleading reports quoting dubious/skewed statistics.

  2. Stitchedup says:

    The more I read the breakdown of the categories the more I feel the courts are having the wool pulled over their eyes.
    Let’s take “Refusing” as an example; an Implacably hostile mother will almost certainly claim she is neutral towards contact and will have alienated the non-resident parent to the extent that a child may well state that it is his/her own choice not to have contact; whilst quoting some of the bogus behaviuoral issues of the non-resident parent that have been drummed into their heads by the hostile resident parent. “Risk” dominated by Domestic Violence allegations which are often bogus and/or exagerated to gain custody of the children in the first place and also to secure occupation orders and better financial settlements. Then we have “Conflicted” which appears to say that a woman can deny the father access simply by being deliberately awkward hence causing conflict; mistrust will certainly occur as a result of false alegations and gamesmanship during the separation/divorce process.

    The courts need to enforce contact not look for reasons to abandon it.They can encourage children to spend more time with non-resident fathers by ensuring that the father is not fleeced in the settlement and is left in a position where he too can offer a comfortable nights’ sleep for his chilren rather than a night in a rat infested bed sit

  3. Tulsa Divorce Lawyer Matt Ingham says:

    Based on my experiences as a family law practicioner in Tulsa Oklahoma USA, I would agree with the results of this study.

  4. Stitchedup says:

    Here are the posts I referred to earlier:

    Luke on July 16, 2013 at 12:38 am

    I think the devil is in the detail here :
    —–
    “Much more common are parents whose poor relationship and personal conflicts get in the way of making a contact order work in practice.”
    —–

    What does that mean ? It seems to me these are cases where one of the spouses is not quite so stupid as to show themselves as obviously openly hostile – and if that’s the case it completely negates the argument that contact orders are not being regularly abused.

    Paul on July 17, 2013 at 9:05 pm

    I think this must have been the post you edited as it hasn’t appeared, Marilyn. You censored it totally!

    The serious point I try to make is that time and again we see this same social policy professor, Liz Trinder, come out with research “findings” that largely chime with her own individual take on social policy. That kind of research is phony, produced on order to match her personal beliefs and framed with political objectives in mind.

    davidmortimermiltonkeynes on July 18, 2013 at 10:26 am

    The ministery of Justice Published the Judicial Court Statistics 28 June 2012 which says in 2011 there were 183,718 children involved in disposals of private law cases in 2011, of which 178,517 involved orders made. The majority of disposals were for contact orders (111,302).

    https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/217494/judicial-court-stats-2011.pdf

    Herald on July 18, 2013 at 10:29 pm

    I only have to read the headline here to feel like vomiting. I’m not sure whether laughing or crying is the right response when someone tries to pull the wool over the eyes of the public and offer such an enormous lie.

    It is frankly disgusting that public tax money is being spent to fund the willful deception of the public.

  5. Yvie says:

    Mothers aren’t necessarily hostile. A good many of them are fully away that if the children stay overnight with their father, there is a corresponding reduction in their child maintenance. If there were no reduction in their money, many of them would become quite amicable. My own DIL was very agreeable to the children staying with their dad over three nights a week, for well over a year, but when she thought there might be a threat to her cash entitlement, my son was suddenly labelled a bad father who didn’t look after his children. No offense to Marilyn, but she was aided and abetted by her solicitor.

  6. Stephanie Bamberger says:

    From my experience as a family law attorney in Sacramento, California, I would also agree with the results of this study.

  7. JamesB says:

    I remember when I finally got to see my wife’s divorce petition. Especially the statement of arrangements for the children. It said “supervised contact offered but not taken up”.

    She never offered any contact and the judge just signed off the divorce anyway, so much for courts giving a damn about fathers.

    Everything in court re contact and finances was a lie from her side, so much so that I spent a lot of my time in court getting dirty looks from lawyers and judges for laughing at her barristers. For example, she cant afford to live, he can see the children, he is not a good person, etc. Despite me being unable to afford a lawyer and her having expensive privately paid barristers by her father, the whole thing was a very a sick joke, as I have said before and continue to say.

  8. Luke says:

    “Relatively few contact cases return to court seeking enforcement – about 1,400 each year – but they are difficult cases for both policymakers and courts to address.”
    ====================================

    There is one other factor other than the comments reiterated above – going back to court to seek enforcement costs money doesn’t it ?
    The legal system rarely does anything without lawyers being paid very large sums of money. If a NRP is paying child support, spousal support and half the costs of the divorce in the first place then can they really afford to keep going back to court for sporadic and hard to prove infringements on contact orders ? I think the answer in most cases would be no.

    If the NRP does have to pay (or potentially pay if they lose) then not only does it blow this whole study clean out of the water one also has to question whether the Nuffield Foundation are competent to even work on such a study.

  9. JamesB says:

    Not arguing doesn’t mean that you are happy, it just means that you are not arguing, which, given that if you argue you get stamped on, is understandable. It is not a reason to say there is no issue in your case.

  10. Paul says:

    And how many cost awards are ever made against these implacably hostile mothers? The answer is none. Not ever.

  11. Yvie says:

    And how many mothers who make vexacious applications to the Family Court in an attempt to stop or reduce contact between fathers and their children, are ever instructed by the Judge to pay the costs of the hapless fathers. None, I bet.

  12. JamesB says:

    Most men can’t be bothered with arguing as realistically there is little point. Some, like me, do, and for little effect other than higher bills and reduced contact, I suppose I am an idealist and non-conformist.

    It does annoy me saying that if you don’t argue you agree though, that is rubbish. Reminds me of a court order which said I agreed to phone my ex every day I had the kids on one holiday. What I said was I would agree to phone her every day if I was allowed to take them abroad one summer. The court said I could not but would still be expected to phone her everyday. I said I couldn’t agree to that or the restriction on taking them abroad yet the order still said both of these things with my agreement. I just stopped arguing because no one was listening.

    Next hearing she moaned that I didn’t phone and I said I didn’t agree to and the whole thing was laughable. I am not sure the pre amble to an order is worth anything anyway, especially as I did not agree to it or sign it. Her lawyer just wrote it as I walked off saying please come back. She had no grounds for not allowing me to take the kids abroad for summer yet she got that restriction. Crazy places these and when you say so you get even less and things get even more crazy.

    Plus I have had to make many applications at over £200 a time to get to see them at all. She never has to pay as her barrister just asks for yet another final hearing on non mol or contact or anything and will get it for free, I ask and I get told to apply, not that there is any point. Is a massive battle, I can see why some / many give up / dont bother with it.

    One thing I will say to both the Mums and Dads involved in this kind of thing is… If you can be a friend with the other parent then that is the best gift that you can give to your children on this matter.

Leave a Reply

Close

Newsletter Sign Up

For all the latest news from Stowe Family law
please sign up for instant access today.

Privacy Policy