David Aaronovitch - Columnist of the Year - Observer 23 May 2004
LET US CALL them (as the courts did) Mr and Mrs V. The Vs are the parents of two small girls, now aged six and eight. Back in 1998, with the youngest presumably just born, the relationship 'began to deteriorate'. Two years later the Vs separated, and Mrs V took custody of the children. Four years further on, and last Thursday in the High Court Mrs Justice Bracewell, a senior high court judge in the family division, took the step, described by lawyers as 'highly unusual', of awarding custody to Mr V.
Why did the judge do this? Because for four years, and despite repeated court orders, Mrs V either refused to allow her husband to see his children, or attempted to block his access, taking the children to police stations and hospitals to make unfounded allegations of assault on them by her husband and his family. Now, having lived for most of their lives with a mother described as 'implacably hostile' to their father, these two small girls will be living with him. What, one wonders, would Solomon have made of the Vs?
Those are the barest of bones. But the judgment, according to the Guardian's legal correspondent, Clare Dyer, writing about the case, is important because it 'signals a growing acceptance by judges that sanctions against mothers who defy contact orders are inadequate'. The implication is inescapable: whatever you think of their tactics, the blokes who threw the purple bombs in Parliament on Wednesday had - according to family law judges at any rate - a real case.
That was not the view I held before I started working on this article. My default setting is one that reads, 'Women right, men wrong'. For every false accusation of rape, hyped by the tabloids, there are hundreds of raped women whose cases never come to court, or whose attackers go unpunished. I know this from the statistics and I know it anecdotally, just as I know that blokes have knocked around their women for years and got away with it.
And I don't believe, either, that parents begin with 50 per cent each of a child's affection. You don't need to be a biological determinist to think that the association made by the baby of mother-plus-nipple equals contentment, is likely to colour the child's development. Other things being equal, and even in the most gender-blind society, it is likely that women would end up caring for small children more than men.
And than there are the unappealing fathers' groups themselves. Men don't make great underdogs. They can't cry properly, and men shouting about women simply reminds everyone of the physical disparity that exists between the sexes.
BUT THEN WE go back to Mr V and the four bloody long years that he has had to fight in order, not just that he should exercise his rights by having access to his children, but that they should exercise their rights by having access to him. Here's a simple proposition for you: most men would have given up long ago, exhausted by the legal process or persuaded that, though they were in the right, their struggle might damage the children. And another: most courts would not have granted custody, despite the mother's obduracy - and for the same reason.
So I put myself in the position of another Mr V who is, say, two years into this process: granted access to his children by the courts, thwarted continually by the actions of Mrs V, and almost certainly continually advised that it would be better to give up the fight. Would I not describe myself (and my children) as being victim of a huge injustice? What would I do about it? Slope off sadly and try and forget that I'd ever been a dad? Most do.
As it happens the Guardian's report on the High Court judgment accompanied a piece about the ex-wives and partners of some of the Commons protesters. One of them, a primary school teacher, told the Guardian: 'Women have their own reasons for what they do; sometimes they have good reasons.' Her opinion was, said the reporter, that the role of law, was 'to protect the woman and children when a relationship breaks down'. The woman added: 'Fathers4Justice suggest women should go to prison if they don't keep to the contact orders; that is just not going to happen. Like it or not women are the primary carers. I know that is not the popular view but it is generally true.'
These sentiments are revealing. The role of law is most certainly not to 'protect the woman' any more than it is protect the man, yet she believes it is. Her attitude is quite simple. As the mother, she knows what is best for her kids, and her knowledge should be privileged over the rights of the father, the access rights of her children and, if necessary, the judgment of the courts; courts which, in any case, will be reluctant to take action to force the mother to comply. No wonder some men end up chucking paint at walls.
True, 90 per cent of access arrangements are settled without ever coming to court. Most parents understand the benefit to their own children of sharing care, and the biggest problem in these case may well be those of geographical distance or the tendency of some fathers, after creating new relationships and families, to abandon their old ones.
But when access is contested things can get very nasty. If the primary carer (usually the wife) decides not to comply, then the secondary carer is screwed. Cases take ages to be reheard, they are often reheard by new judges who don't know the history, the court reporters who are supposed to follow up are under-trained and their reporting is peremptory. What, for instance, is a callow reporter to make of a child who, under intense emotional pressure from Mum, says he would rather not see his dad? And, as the case of the Vs illustrates, non-complying carers will often make all kinds of accusations. Mostly the courts have no way of evaluating them.
LET ME MARK, at this point, the way in which this issue becomes polarised. I was struck by the response of the pressure group, One Parent Families, to the fathers' complaints. Writing a letter of rebuttal in a Sunday newspaper, the deputy director of One Parent Families argued that 'neither the law nor judges' interpretation of it is unfairly biased against fathers', adding: 'Among the minority of cases in which parents cannot agree, fathers are rarely denied contact with their children. In 2002, less than 1 per cent of contact orders applied for were refused by courts.'
But there is a disingenuousness here that borders on dishonesty. First, 'contact' can mean a whole series of things from weekend visits to short meetings in sterile neutral contact centres. Second, the big issue, as One Parent Families must know, is the question of enforcing contact orders once they're made. So why don't they address this?
The issue is so raw partly because of the coming together of two related trends. The first is a sensitivity to the way in which women have been treated historically. And the other is the changing view of fatherhood itself, with many more men seeing themselves as co-carers than before. It is very hard for the law to take account of both.
And this is where the father's movement has a big problem. The primary school teacher is right - there are not going to be jailings and finings of mums. Even if judges would do it, most fathers won't pursue it. Custody decisions such as Mrs Justice Bracewell's will be rare. We could stop the circulation of judges, and train court reporters better. But the long-term answer has to lie in convincing more people to behave better, in convincing them that it is shabby and damaging behaviour, no matter how bitter they feel, to exclude loving fathers from their childrens' lives.
SPIG supports Fathers 4 Justice in their actions in furtherance of the aims of shared parenting
Last updated - 29 May 2004