Guardian/Observer

Mothers matter more

At last, a judge in a child custody battle has dared to acknowledge the simple truth

Dina Rabinovitch
Guardian Saturday April 20, 2002

This week the court of appeal made a genuinely radical judgment. A house husband's attempt to win custody of his children was rejected. And in doing so Lord Justice Mathew Thorpe said - and this is the radical bit - that the application seemed "to ignore the realities involving the different roles and functions of men and women".

That this is a startling thing to say is the result of years of back-and-forth argument between powerful factions. For too long we have been trying to obscure differences, to say we are all the same, and therefore as parents men and women are equal. For the past 15 years, the family law courts in this country have been moving towards a concept of "equal parenting". Now, in one ruling, the appeal court has shifted the ground again.

And in so doing, the court has done something which will genuinely advance the cause of children, in contrast to the damage caused by the years of political correctness. For the move towards more access to fathers was not radical - it was actually the end of a long and chauvinistic road.

Under English law married women were, until surprisingly recently - as Professor Lawrence Stone of Princeton University argues in his book Road to Divorce - "the nearest approximation in free society to a slave". Until 1839 a separated wife was deemed to have given up her right of access to her children. Women who committed adultery were considered unfit for either custody or access. Unbelievably, it is only since the divorce reforms of the 1970s that women have, in English law, been seen as equal parents to their children.

Most people think women automatically "get the children" after divorce, and that fathers, as a result, are terribly discriminated against. This isn't, and has never been, the case. Once women didn't stand a chance; now, their fate is in the hands of the courts.

The family law courts are the only courts where a judge's discretion rules supreme. Discretion is necessary, so the thinking goes, because all families, even unhappy ones, are different. Each judicial decision is meant to be a unique, tailored solution to a set of unique family problems. This is the theory. The reality is that quite arbitrary principles are adopted, and then rejected, as one fashion succeeds another.

At the same time, because of the important principle that a family's privacy should be protected, proceedings in a family law court are held in private. They are not open to the press or the public. This is right. But this difficulty arises: because the proceedings are private, the basis of the decisions (and usually the decisions themselves) are never known. This means that both the users of the family courts, and even the judges themselves, are operating in the dark.

So, for example, nobody can state how many mothers are awarded custody of children, as compared with how many fathers. This in a country with one of the highest divorce rates in the world.

Two years ago I began writing about family law. I had unparalleled access to the family courts. What I found was not what I'd expected. Far from fathers being discriminated against, in the family law courts they are actually using their heftier financial clout to deprive mothers of time with their children. Among judges, there was a strong bias towards "shared parenting" - which in practice was about bending over backwards to accommodate fathers' wishes.

In many cases children were being taken away from their mothers for questionable reasons. One woman lost custody of her two children because they weren't wearing seatbelts when they were driven to their father. In another case siblings were split up - the boys to the father, the girl to the mother - and the judge gave no reason. Until recently, judges' decisions about what was best for children were based on the advice of court welfare officers - a group of professionals from the probation service, untrained in children's issues, who were given the job of interviewing children after divorce. These interviews usually last no more than 10 minutes. Anyone who has anything to do with children knows that understanding their wishes is a complicated process, yet judges rarely question welfare officers' conclusions.

It is only in the past two years that the training of court welfare officers (newly renamed Cafcass officials) has been looked at afresh. But so far the changes are mostly in name alone.

The belief in the courts was that it was the wisdom of Solomon to divide a child equally between two parents. Sometimes, judges would be explicit about this: "If I may be so bold," one judge said, "as to assume the mantle of Solomon, I am going to take the days in dispute, and divide them equally between these warring parents."

The judge didn't know the story of Solomon. In fact Solomon, faced with two women both claiming to be the mother of a baby, said: "I will cut the child in two." At that, one mother cried out: "No, let her take him".

Solomon knew at once this was the real mother. Real mothers don't divide their children in two. It's not just that the judge didn't know his Bible; it is that he didn't understand the nature of motherhood.

Now another, far wiser, judge has pronounced on motherhood. And Lord Justice Thorpe's words will provoke a screaming outcry from the fathers' lobbies in this country. Many feminists will also protest (though those who have seen the inside of a family law court will not). However, Justice Thorpe has done nothing but state what is true.

Everyone who speaks out against the family law courts is immediately inundated with emails from groups lobbying for the rights of fathers after divorce. There are no parallel groups lobbying for mothers' rights. Mothers are reluctant to speak out, ashamed of not having their children, believing that they must be bad mothers if their children have been taken away. They were not to know that the courts' decisions were so arbitrary.

But in all this talk of fathers' rights and mothers' rights, what really has been ignored is the children's wishes and the children's welfare - which is what the courts are supposed to protect. It is indisputable that the bond between a child and its mother is different from that between a father and a child. The mother carries the child, is delivered of the child and feeds the child. The relationship is unique and incapable of substitution. We tamper with it at our peril, and at the greater peril of our children.

The arguments in the family law courts are so unnecessary. Let one norm stand, and immediately there is no reason for warring parents to go to court. All that is needed is for the children to spend enough time with the father, and with enough frequency, that their stays with him feel like a second home. So a pattern of visitation based around, for example, alternate two-night weekends to the father, half of all the holidays and a fortnightly mid-week visit, would come to be regarded as the working norm.

Also, let us abolish the language of the family courts - no more talk of custody, or residence. We do not say of a married father who never sees his children that he does not have custody. Why say it in divorce? Parents remain parents. That is true. And a mother's bond with her child is irreplaceable.

dina_rabinovitch@yahoo.co.uk

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