News and Insights

Unfair family courts and how fathers are increasingly being prevented from seeing their children.

Over the past few weeks, even the pages of this paper have featured this topic both through the letters page and the setting up of Dads R Us by Paul Pinel. Mr Pinel correctly identifies the need for information for fathers in the Island seeking access to their children.

This is a topic that will not go away. In many respects, it is one of the most important and pressing social issues facing Jersey where the incidence of family breakdown is arguably even higher than on the mainland.

It is essential that we consider both sides of the debate, as it is all too often the case that this is not done where there is an exceptionally high profile pressure group representing one side of the argument.

Bob Geldof has stated the stark facts in the UK. One in four children live in one-parent families and that children from these families are five times more likely to be unemployed and are three times more likely to turn to crime later in life. He went on to argue that family breakdown costs the UK taxpayer £15 billion each year.

The chances are that if an analysis were done in Jersey, the cost to the taxpayer would be equally startling.

Campaigners of father’s rights have long argued that the family courts are unfair. They highlight this by showing how, although the courts are meant to be ‘gender neutral’ nine out of ten favour the mother.

It is argued by fathers who only have rights of access that it is very difficult trying to cram their whole relationship with their children into a few hours at the weekend. There are so many activities to be crammed in that there is no time left just to do normal everyday things. This is even more apparent in those cases where the child does not enjoy overnight stays. The relationship with Dad becomes even more artificial and means that for the child who was used to seeing their father at home as part of his or her daily ritual; this is suddenly taken away. All this leads to fathers who feel discriminated against, who become alienated from the court process and as shown on the mainland, has led to the fathers’ cause becoming more and more militant. The danger of this is that the justness of the cause is lost in the stunts and every increasing spotlight by the tabloid press on the personal lives of just a few activists in the father’s movement.

C4 last week did not portray the mothers’ story. It is a fact that in the UK only in 0.8% of cases do the courts refuse to grant a contact (access) order. It is not highlighted by Fathers 4 Justice that often the reason for denying contact is domestic violence. This is a social problem, which affects one in four women and kills two women each week. The effect on children who have experienced domestic violence is severe. In 90% of all incidents of domestic violence there are children in the same or next room. Both they and their mothers are at risk for depression, anxiety and post-traumatic stress. This side of the story must be remembered too.

It is envisaged that by the spring of 2005 Jersey will introduce the new Children Law. This law is based almost entirely on the Children Act 1980 in England & Wales. This is the same piece of legislation that is now so hated by fathers on the mainland. This is the legislation under which the family courts have been accused of becoming more and more draconian and secretive. Don’t get me wrong, in many respects this law is an improvement on which currently exists in the Island, but hugely important issues still need to be debated.

We have failed to properly debate these issues in the Island to date. Should we not have looked at the lessons to be learnt in the mainland where the Children Act has been in force for over two decades to see how it could have been adapted here? It appears our politicians are not doing this.

The issues that must be addressed, I would argue are:

• Should the starting point for contact be 50/50 as now advocated by the Tories in the UK?  This has been the law in several jurisdiction for many years now. The argument is that frequent and regular contact with children is important and a 50% rule gets rid of fathers concerns of discrimination.
• Should mediation be compulsory where there are disputes about children and courts only able to be used as a last resort?
• Should there be an irrefutable presumption of no contact as in New Zealand, where domestic violence has occurred.
• Should shared parenting be seriously considered in all cases so that both parents can continue to play an integral part in the everyday life of their children?
• Should shared parenting be considered even in cases of what is called ‘implacable hostility’ where the mother is hostile to the father having contact? There is a recent English case where this was ordered by the High Court.
• Should the States be seriously considering that the family court and its associated services should no longer be the ‘Cinderella’ within our legal system and be given the funding and expertise that is so clearly needed?

We must talk about the impact on children when a relationship breaks down. All of us must take part in this debate.