The gendered nature of private family law

Family Law|October 22nd 2016

Somewhere down on Petty France – the London home of the Ministry of Justice (MoJ) – work continues apace on a project called the Out of Court pathway. There is a clue in that title. The team of civil servants engaged in the task have identified many of the problems so familiar to readers of this blog. But some remain seemingly undiscovered.

The gendered nature of private law disputes is a problem for the family justice system. Whilst we recognise that the courts make decisions that are child-focussed and underpinned by the principle that ‘the best interests of the child are paramount’ it is inescapable that gender plays a significant role in proceedings. It is also true that same sex parents can of course face problems but the majority characteristic of ‘private law’ is undeniably a dispute between a man and a woman over the arrangements for their children.

The moment we acknowledge gender we fire the first salvo in the war over bias that has been fought bitterly here and elsewhere many times. The inimitable John Bolch has written on the subject tirelessly, repeating again and again his own mantra –‘there is no bias in the Family Court’ – and decrying the conspiracy theorists.

Meanwhile, in a more structured way researchers, primarily funded by the MoJ and the Nuffield Foundation, with Professor Liz Trinder at their head, have declared conclusively that there is no bias in the family courts. In her seminal statement on the issues in The Guardian newspaper back in 2012  Professor Trinder confidently declared  that:

“The research evidence is clear…. the claim of systematic bias against fathers is a myth.”

But myths are powerful things and are not so easily dismissed. A recent helpline caller told me that he’d just come from a legal advice clinic where the solicitor volunteer had told him that he had no chance of achieving his aim as everyone knew that the Court was biased against men.

But Professor Trinder finds no bias and insists that enforcement works very well. In fact she claims that contact is being granted in too many cases where serious allegations of abuse have been raised. The counter argument – that women are disadvantaged in the Courts – can also plausibly be developed, citing evidence that fathers are overwhelmingly awarded some form of contact even where mothers have identified domestic abuse.

Powerful lobbying from Women’s Aid takes a similar tack, underpinned by their attention-grabbing 19 Child Homicides report. There they call on the family justice system to stop awarding contact to fathers altogether because, they insist, they are often abusers who kill their children. This is a very different take on the issue of gender bias of course.

It is against this backdrop that the Ministry of Justice Out of Court pathway has started work. Some of its objectives include:

  • Effective, fair resolution of child arrangement disputes which provide better outcomes for children and families going through separation.

That’s nothing there that anyone reasonable could argue with of course. In my experience all parties agree that outcomes for children need to be of paramount consideration – they simply disagree on what that looks like in the real world.

  • (To) encourage a cultural shift to one of self-service (where appropriate) through provision of information and support.

Now I can sense the lawyers amongst you starting to worry. ‘Self-service’ feels a bit too much like ‘litigants in person’ – and we all know where that leads us: to chaos, with the ‘lunatics’ taking over the asylum!

But how do we know whether any of this is really achievable? The MoJ have helpfully set out some ‘outcome measures’ so that we’ll know whether their plan is working. These include:

  • Reduced court applications
  • Financial savings for the tax payer due to fewer private family court proceedings

Aha – yet another attempt to stop people going to court and thereby cut the bill to the tax payer. No doubt someone did a similar exercise over legal aid and look where that took us!

But my theme is the gendered nature of private law – how does that relate to the MoJ initiative? Let’s look at the first outcome measure. The clear intention there is to reduce the number of applications. It makes sense therefore to look at who is applying to the court, because by stopping them you will achieve your goal.

Perhaps surprisingly the MoJ don’t seem to have published data about the profile of applicants. We thought that might be a little bit of an oversight so we made some enquiries. The headline fact is that, from a detailed analysis of applications under section 8 of the Children Act 1989, from 2011 to first quarter of 2016, we see a consistent theme – men outnumber women as applicants by a little over 2:1. This fact is corroborated by Nuffield-funded research from 2015 which shows that 70 per cent of applicants are men (although it is worth noting that 96 per cent of applications for contact under the pre-2014 arrangements also were initiated by men).

Researchers Dr Maebh Harding of the University of Warwick and Dr Annika Newnham of the University of Reading state that:

‘The most common type of court application was for an order to allow contact, making up 41% of our sample. 96% of all contact applications were made by fathers. The majority of these applications were made in order to initiate or restart contact.’

So, it seems pretty clear that understanding the gendered nature of private law proceedings is an essential component of achieving the outcomes that the MoJ seem to want. It is all the more bizarre then that in a 62-page Powerpoint delivered to MoJ ‘stakeholders’ at the end of August there was absolutely no recognition of the gendered nature of the problem. Online dispute resolution, fewer cases going to Court, greater emphasis on self-help – it’s all familiar yet worrying stuff for legal professionals. But fear not – at a recent MoJ presentation someone put their hand up and asked ‘But what if there’s domestic abuse?’ The answer the officials gave may reassure. It was:

“Straight to court!”

Read Liz Trinder’s article in The Guardian here.

Paul Apreda is a Trustee of the English charity Families Need Fathers in addition to being National Manager of the Welsh charity. He is also Secretary of the cross party Group in the Welsh Assembly on fathers and fatherhood.

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  1. Simon carr says:

    The biaest exists it’s just not the judge it exsist inherently within the femail domanated childrens social services and cafcass these are the people who really decide what happens with your children the judge only acts on their recomendations in their section 7 reports they talk in depth with the resident parent (nearly always the mother) visit her numerous times and stay in constant contact with her wile compiling their report they will also talk to the children at her house in a environment the mother aggres to and anyone else the mother wishes them to talk to they are not required to check anything they have been told to assert if any of it is true they are trained to use there interwitichion (baisically they are told to choose who they prefear to belive)and they only allow the father just one 30 minute phone call to put his side across also the only thing that decides who the resident parent is to begin with is whoever has the child benifit number in their name and the child benifit office will only ishue a child benifit number to the mother with this level of biaest already inbuilt into the system their is no need for the judge to use any it’s already been done for them if the social worker or cafcass officer takes a dislike to your face,gender,tone of voice or if she blindly belives your ex and chooses not to belive what you say in your allowed 30 minutes you never see your kids again and your family are removed from their exsistance I find it utterly moronic anyone would even try to defend this system even surrounded in secrecy laws everyone still knows it’s a sexist disgrace.

  2. Vincent McGovern says:

    Oh Dear, Liz Trinder, Womens Aid and John Bolch retired family law solicitor, three sides of the same coin if ever there was. Or the three monkeys, hear no evil, speak no evil, see no evil. The biggest problem within family law is the brutally gendered nature it exercises at all levels. Of course those of us with proof positive of such, I have five Ombudsman Investigations on exactly this child endangering gender discrimination, will always be dismissed as conspiracy theorists by those who seek to protect the current system at all costs. A few examples:

    1. M.A.R.A..C (Multi Agency Risk Assessment Conference) exercised by so many Local Authorities work with and defer to domestic violence agencies that discriminate on grounds of gender in service provision. This means for example that a male primary carer is automatically blocked from accessing help from so many agencies because of gender. This process arms the mother with the means to obtain Non Molestation and Legal Aid for court process.

    2. Cafcass, a bad joke on children set up April Fools day 2001. Cafcass work very closely with the above gendered agencies to facilitate and perpetuate allegations demonising fathers.In fact Cafcass own domestic violence programmes DVIP/DVPP are for male perpetrators only. This totally contradicts the Office of National Statistics and the British Crime Survey published February 2012. Of course Cafcass will deny they run these programmes but after two PHSO of my own with success against Cafcass I believe they bring lying into disrepute.

    3. The Family Courts almost without exception accept at face value these allegations against fathers obtained and presented by the above agencies. By the time he has been cleared perhaps years later, his children are usually totally alienated against him because of the above system facilitating parental alienation at all levels. As for enforcement let’s not laugh too much, Fnf Wales established it was around 2.1%.

    There are a tiny minority of mothers who lose horribly in the above system, but over 95% are the dads. So much for gendered principles which are always denied by those whose professional income or ideology benefit so much from.

  3. Charles Jackson-Smythe says:

    The job of the family courts is of course to apply the law and the starting point must therefore be the law, as laid down by Parliament: is this biased? The answer is a simple and resounding “no”.

    There is nothing in our family law that discriminates against either men or women. We totally agree that Parliament and the Law are unbiased it is just those who enforce the law who are ill-trained and ill-advised by prejudiced people who have an agenda to con the Taxpayer out of funds and to be a lobbying Group. Our own considerable research show much discrimination to show that women led surveys are totally biased, but that is what is to be expected. The Report by The Cheltenham Group in 1996 shows that in the last 10 years we have hardly rebalanced the abuse of men in our family courts that are Secret to maintain an Income Stream and with the frequently ill based information fed to our Judiciary who do not wish to offend the PC Brigade and their masters still consider men to be second class citizens. The Law’s intentions are good but badly carried out.

  4. Rob Cheyne says:

    I’ve yet to meet a lawyer (even the ones I’ve discussed matters with on radio programmes) who doesn’t accept there is a bias against men. The number of second Sc7 reports completed within 6 months of the first but coming to a completely different conclusion only confirms how “lucky dip” the process is. 2 months ago at a meeting (Families Need Fathers) we had 2 Dads who saw the same judge on the same day both coming out with shocking judgements. One of them was told by the judge “Dads don’t really do the looking after of the children do they”. He’d been solely caring for his 2 year old son for a year after he recorded the mother walking around the house with a knife threatening to kill the child. He was expected that “now she’s better you can hand her back”. I couldn’t see that happening the other way around.

    I don’t envy the social workers and judges who have to make these decisions but they should have much better evidenced based processes in place. Particularly the recording of what each parent and child tells them.

  5. Vince Pitts says:

    You mention the same Liz Trinder who carried out research into enforcement and concluded: “Adequate punitive sanctions are in place, are mostly used when needed and can secure
    compliance.”. Any father having had the misfortune of enduring a former partner willing to breach an order from the court will know that the court will do nothing. How reliable is her research? In thecase of Rebecca Minnock it was all strong words until she was ‘held to account’ but even then the judge stopped short of taking action and left any decision to impose sanction or punishment to the father. The court were afraid to act so instead placed the father in a position where any action would bring significant criticism? I ask again, how reliable is Liz Trinder’s research? How many did she speak to? She certainly didn’t speak to me but even if she had I am very well aware that I am effectively gagged and can say nothing unless I wish to risk losing everything. I cannot speak of the clear and obvious bias I have experienced other than to say that I have experience of it. No examples can be given, no names can be named. If there is no bias, we would not be seeing headlines such as “Father refused access to daughter despite 82 court orders”. Has Liz Trinder not read the article? Has she put on her rose tinted specs? Her conclusion that there is no bias is as worthless as her conclusion that there is no bias. I have to seriously question her credibility and have significant doubts over her impartiality.

    But, I digress. Relevant, but off on a tangent and back to the point. Before you can fix a problem you have to understand it. It would seem Paul Apreda does understand the problem to a far greater degree than those pulling the strings and bringing in change but unless he and other like him are drawn into the process, listened to, heard, accepted, there will be no effective solution. We will just see more wasted effort, more unreliable statements, more people claiming to aiming to fix the problem, whilst seemingly hiding from the cold hard reality that there is a septic rotten heart to the family court and that heart goes by the names of bias and discrimination. A bias and discrimination that should have been thrown out with the expectation that women should stay at home and look after the children. Men can make great parents. Let them.

    • Vince Pitts says:

      *Reference Liz Trinder: Her conclusion that there is no bias is as worthless as her conclusion that there are adequate punitive sanctions are in place.

  6. Name withheld says:

    I wish I could see my daughter without courts but as her mother refuses access I am left with no choice but to use the courts and a woman who can lie to cafcass and prolong the pain of child and father should be punished . There is no punishment for mothers who lie to court to hurt the father and child and there are many cases of it men suffesuffer as there is a gender problem with the system

  7. Anonymous says:

    Mother runs off with child, no action. Father runs off with child, uproar and likelihood of contact being stopped at some point in the future over fears of abduction. Mother raises concerns, father has to jump through hoops to disprove. Father raises concerns, mother finds herself being defended by CAFCASS and the Court who then attack father for levying criticism against mother. Familiar to too many. If you want to reduce litigation try an approach where mother has to apply to stop contact rather than where father has to apply to maintain. Further option is to penalise parties where allegations made cannot be substantiated. When two parties are at war, the word of one party should not be enough to damn the other. Introduce a burden of proof.

    Just a thought, but do our elected leaders/MOJ actually want to stop the economy boosting litigation that goes through the family court?

  8. Lynne Blore says:

    It is totally apparent in most cases that I am aware of that both the Courts and the “experts” who advise, have a start point of feeling that the natural place for a child is with their Mum, any involvement of Dad is purely an addendum. It is hardly surprising given the lamentable lack of proactivity from Community and Family Services to engage with Dads, that this outdated view of the family exists. Until the importance and equality of both parents is both recognised and promoted the best interests of the child are never likely to be shared. Given that the creation of a child is an equal union of the parents, should not the parenting also be on an equally shared basis as the standard starting point.
    As for the laudable objective of “Effective, fair resolution of child arrangement disputes which provide better outcomes for children and families going through separation” – there is nothing effective about a court ordered arrangement which can and is breached again and again, with absolutely no enforcement. How much money and time would be saved if only they were effective!

    • JamesB says:

      Completely agree. Cafcass and me didn’t even talk let alone them see me with the children, they were just so ridiculously biased and full of bullshit. I heard the angle they started from (first thing they said) “well what do you have to say for yourself” – while holding letter from ex’s solicitor I hadn’t seen a copy of. I said “about what” they said “this” I said I haven’t seen that and don’t know what you are talking about, they said – what’s your solicitors number, I said, I don’t have one, they tutted and huffed and puffed through report (an hour late for the appointment I was on time for, I walked out.

      They still had the temerity to say they expertly recommend every other weekend and the judge called it an expert report, utter bullshit.

      • JamesB says:

        they tutted and huffed and puffed through ex’s solicitors letters (no evidence), I just said I disagree and was honest in my answers, they said can I come to your house and see you with the children, I said no, I don’t think you are very nice the way you are dealing with this matter.

        So, basically, kiss their arse and get bugger all or be yourself and get half of bugger all, I prefer the later and write to my MP and the ombudsman who upheld my complaint that they were rubbish how they did not engage with me, not that the judge was any better, there comes a point you get sick of complaining though.

        It is a ridiculously anti male system though.

  9. JamesB says:

    They refused to discuss my complaint with them as I used a swear word in one of my letters. The ombudsman criticised them for that also. Bloody useless Guardian reading metropolitan liberal elite bullshit mongering people causing more problems. Its a shame because I quite like the Guardian.

  10. A marginalised father says:

    The police, solicitor friends, an incredibly biased CAFCASS ‘officer’ (who gleefully said that ‘Human Rights don’t apply to fathers in UK Courts’ and that ‘Fathers have no rights where it comes to their children’), the 4 barristers and 3 solicitors I instructed and Cardiff Civil Justice Centre have all said that the Family Courts operate under gender bias to the detriment of the fathers (and of course the children.) The ONLY people associated with the Family Court who have expressed an opinion to the contrary are……the Family Court themselves. One of many examples: I have been in an enforcement hearing where the female respondent was advised to request a variation to absolve them of their repeated guilt whilst I was threatened with prison after an allegation that I called the respondent ‘pathetic’ , even after I explained that the Court had deliberately taken my use of the the term ‘pathetic’ out of context. I chalked up three threats of being sent to prison in under 30 minutes over this….and the person who repeatedly broke the Court Order was treated like a helpless victim rather than a calculating and coercive abuser. The oft-quoted clarion call of ‘The welfare of the children is paramount’ is patently not true. The welfare of the mother is the prime concern of the family court and the failure of the legal system to have the resolve to challenge an out dated stereotype and serve the best interests of the children are the problems here and if this level of discrimination was directed at women or people with non white anglo-saxon heritage or anyone who wasn’t heterosexual then there would be blood in the streets.

    • JamesB says:

      The law is what’s in the interests of the child. What we have is lawyers using that as a free for all carte blanche defence on behalf of the parent with care just to say they are doing a difficult job as well as they can and find the accusations stressful, please make them go away so they can bring up children as best as possible, order Mr…. , case closed, variation approved. Same thing happened to me, complete nonsense, brings the court into disrepute and is not what the law says or means, absolutely outrageous, as is that the politicians don’t clarify the children act or repeal it. I completely agree with you. I have had it from numerous judges and officials from circuit court judges to cafcass officers and is well dodgy.

  11. A marginalised father says:

    Oh I forgot….my MP agreed as well although he was reluctant to help a constituent on the implied grounds of being sexist.

    • JamesB says:

      That sort of thing gives MPs a bad name and is why so many SNP MPs are in Scotland, because MPs have not been representing people as they should (evidenced by Brexit etc.) making ‘educated metropolitan liberal elite’ separate and unrepresentative of society, I find them and the language they speak (like this welfare of the children principle meaning parent with care wins all) incomprehensable.

  12. JamesB says:

    Another example, mother doesn’t attend court, no good reason, with representation, case adjourned. Father doesn’t attend court as can’t get that day off work, unable to afford representation, final order made in his absence, case closed, order for cost against him. Very bad system.

    • JamesB says:

      Happened to me and 1 other. Seen it done. Avoid these places like the plague if you possibly can. If you go to family court in England and Wales as a man you will lose. Scotland is much better, we need their system. Here it’s man is accused, woman is excused.

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