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June 15, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

For a long time now, those opposed to equal parenting laws have made the specious claim that all fathers have to do to get custody of their children is ask for it. When they do, so the claim goes, courts grant it to them. Of course there’s no evidence for the proposition and a great deal that refutes it, but that doesn’t stop the anti-equality crowd. Absence of facts never does. Sometimes they cite the Maccoby and Mnookin study from the early 90s, but, since that actually demonstrates the opposite of their claim, most of them shy away from it.

But now, supposedly, they’ve finally gotten some data to support their claim. It comes in the form of this study done by two British academics. The very limited publicity for the study comes in this article that asserts that the “study finds English and Welsh family courts not discriminating against fathers.” (PhysOrg, 6/2/15). Of course, had the writer actually read the study, he/she would know that it shows no such thing. Stated another way, the best thing the study can be cited for is the notion that family courts in the U.K. simply replicate the anti-father discrimination of the society at large.

Researchers Maebh Harding of the University of Warwick and Annika Newnham of the University of Reading examined 174 cases under Section 8 of the Children Act of 1989. They did so in five different counties in England and Wales in an effort to gather information on child custody outcomes, what parents wanted, what they received from the courts and various other matters. From the article in PhysOrg, Harding describes their findings thus:

Dr Maebh Harding, from the School of Law, reviewed almost 200 case files from 2011 and concluded that contact applications by fathers were in fact "overwhelmingly successful"...

Dr Harding said: "Whilst it's true that mothers were usually the primary care giver in contact applications, this was simply a reflection of the social reality that women are more likely to take on the role after a relationship breakdown.

"But there was actually no indication of any bias towards mothers over fathers by the courts; in fact we established there was a similar success rate for mothers and fathers applying for orders to have their children live with them.

"And although the overall number of residence orders made for mothers was higher than those made for fathers, this was because a large number of such orders were made for mothers as respondents in cases where the father sought contact.

"Transfers of sole residence were rare as the courts sought to preserve the status quo and where they were ordered they were disproportionately likely to be transfers from mum to dad and to feature welfare concerns and children's services involvement.”

There we have it. According to Harding, all is peaches and cream in family courts. Fathers are treated just fine there. Really? Let’s see what Glen Poole has to say about that (Telegraph, 6/3/15).

So it’s official then. The University of Warwick has spent £100,000 researching the family courts in England and Wales and concluded they don’t discriminate against fathers...

When such claims are made, many people read the headlines, such as “Anti-father bias is a myth” or “Men are treated fairly by courts”; but few of us ever look at the actual research.

If we did, this is what we could learn from the latest “evidence” on the way men are treated by the family courts.

According to the report, in 96 per cent of cases, the parents who apply to court for “access” to their children are men, with the average case taking between six months and two years to complete. In just under half of these cases, dads will win the right to have their children stay with them overnight, with the most common arrangement being every other weekend. Just under a quarter will be restricted to seeing their children in the daytime and the remaining quarter will be given little or no opportunity to be the daddy.

According to the University of Warwick, the lead researcher on the project, Dr Maebh Harding, looked at this data and “concluded that contact applications by fathers were in fact overwhelmingly successful”.

The basis for this claim is that 88 per cent of dads who applied to court for contact with their kids were awarded some kind of access. For example, 10 per cent were restricted to “indirect contact” with their children via phone, post or Skype; a further five per cent were only allowed to see their children in the company of a supervisor and 23 per cent were permitted to spend a few daytime hours with their children.

I don’t know about you, but when I think of an “overwhelmingly successful” parent I don’t picture someone who is neither trusted to be alone with their children, nor allowed to wake up in the same house as them.

Exactly. It tells us something about Harding’s take on the whole matter of parenting orders in family courts that, as Poole says, under half the fathers even being given the right to see their children overnight constitutes “overwhelming success.” That of course means that over half don’t have that right.

From this Poole draws some obvious and correct conclusions.

If 96 per cent of separated parents who had to apply to court to see their kids were women and half of them weren’t allowed to have their children sleep in their same house, would we deem this a success? Of course we wouldn’t.

And any system that produces such unequal outcomes for men and women and not only considers that output to be acceptable, but deems it “overwhelmingly successful” cannot be anything other than sexist, biased and discriminatory.

And to further make the point that British family courts do indeed discriminate against fathers (and therefore children), Poole moves on to issues unaddressed by Harding and Newnham.

In 2015 it is still the case that mothers and fathers do not have equal rights. As the former Equal Opportunities Commissioner, Duncan Fisher, explains:

“In UK law, a father can only be a father if the mother approves him. She can do this in two ways — marry him or invite him to sign the birth certificate. If neither of these happens, he is not the father until the family court approves him. A man has to be vetted by the mother or the state before he is allowed to be a father.”

So, simply by choosing cases in which the fathers had managed to establish themselves as such, the study ignored the fact that, under British law, fathers’ rights are, to a great degree, a function of mothers’ goodwill. That’s scarcely gender-neutral as surely even Harding and Newnham would admit.

Poole’s final point is the proverbial “bottom line.”

The entire system of parenting in the UK is set up around the presumption that mother knows best and that when parents separate there should be a primary parent (nearly always the mother) and a secondary parent (nearly always the father).

The role which is reserved for the secondary parent is unfair, unequal and for many, a deeply unfulfilling way to experience parenthood.

The family courts may well apply their rules fairly, but this is not the point. The main issue for separated dads is that the rules that shape family life in the UK are unfair and unequal and any system of law based on those rules can only ever be biased against men.

By focusing solely on what judges do in individual cases, Harding and Newnham assiduously avoided the larger picture that Poole does not. It’s all very well to compare individual cases and conclude that, under the dictates of the law and the customs of the courts, fathers and mothers are treated with rough equality. It’s yet another to take note of the fact that rank discrimination can easily conceal itself within those very laws and customs.

Of course Harding and Newnham would argue that their study is merely what it is and not something else. That’s a fair point. No work of social science can fairly be criticized for failing to be something it’s not. If someone else wants to do that other study, then let them.

Fair as that argument is, it nevertheless fails on two points. The first is that, as the PhysOrg article makes abundantly clear, what the study actually is and how it will be used in public discourse are two dramatically different things. We see this all the time. Advocates for a particular issue make claims for a particular study that the study itself abjures. And so it will be with Harding’s and Newnham’s work. Count on it. For one thing, the study was conducted for the Nuffield Foundation that has a track record of opposing equality in family courts. For another, we have Harding’s own words that leave little doubt about where she stands on the subject. Finally, the PhysOrg article reprises those claims unquestioningly. In short, the process of pretending the study says something it doesn’t has already begun.

Second, a closer examination of the study’s results demonstrates that it both subsumes discrimination against fathers and records it.

Next post, I’ll conduct that closer examination.

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