C A S E L A W S A N D T H E
'H O U S E O F C A R D S'
Sometimes Case Laws build up on the back of a false assumption made in a previous precedent like a 'house of cards'.
It was the celebrated Child Psychologist Dr John Bowlby who invented the flawed theory of 'Maternal Deprivation' in his book 'Maternal Care and Mental Health' (1952) which states,
'What is believed to be essential for mental health is that the infant and young child should experience a warm, intimate, and continuous relationship with his mother (or permanent mother substitute) in which both find satisfaction and enjoyment. The mother cares for and comforts the child whereas in the young child's eyes father plays second fiddle'.
This theory underpins private family law in the UK and still informs prominent feminist activists such as Dr Penelope Leach, as well as celebrities like the Oscar winning actress Kate Winslet.
B A R O N E S S H A L E
Yet in another judgment in the Court of Appeal in the author's proceedings Baroness Hale stated,
15. Sir Michael qualified the original theory of maternal deprivation which had been developed by John Bowlby and expressed for popular consumption in a book called 'Child Care and the Growth of Love'. That theory was that children were damaged by separation from their mother or mother figure. Sir Michael Rutter pointed out that children were not invariably so damaged and that, in any event, other people, including their fathers, are also very important to children. (8 June 2000)
As Baroness Hale stated Dr John Bowlby's theory held that children are 'damaged' by separation from their mother but in reality they benefit from more than a single 'primary carer'.
P R O F E S S O R S I R M I C H A E L R U T T E R
In the same year as Lord Donaldson made his precedent based on this flawed theory, the 'academic' Professor Sir Michael Rutter was knighted for his work in children's welfare which included his seminal book, 'Maternal Deprivation Reassessed, Second Edition' (Penguin, 1981).
The greater encompasses the lesser and 'Maternal Deprivation; Reassessed' contradicts Dr John Bowlby's research.
i. Investigations have demonstrated the importance of a child's relationship with people other than his mother.
ii. Most important of all there has been repeated findings that many children are not damaged by deprivation.
iii. The old issue of critical periods of development and the crucial importance of early years has been re-opened and re-examined. The evidence is unequivocal that experiences at all ages have an impact.
iv. It may be the first few years do have a special importance for bond formation and social development. (page 217)
Dr John Bowlby described Professor Sir Michael Rutter as his 'erstwhile critic' because it is largely due to his work that we now have the research evidence to show, for example, that mothers can pursue their own careers because children are not harmed by separation. It was Professor Sir Michael Rutter who described the book 'even Toddlers Need Fathers' as an 'interesting and informative guide'.
S H A R E D P A R E N T I N G
L E G I S L A T I O N
One solution to the prejudice against fathers as parents in the Family Court would be the introduction of Shared Parenting legislation. Maureen Freely writing in the Guardian newspaper ('Children first', 27 March 2002) describes the principle of Shared Parenting in the following way,
'Shared parenting as practised today is a flexible concept. It can mean that all care is shared 50-50, or that children spend 80% of the time in one house and 20% in the other. Most families do the fine print by themselves. Its only when they can't agree they end up in court. When they do, their case will be considered according to its own merits. But certain rules of thumb remain. When making their decisions, many British judges still shy away from the ideal of shared parenting as described in the Children Act and are guided by the 'tender years doctrine'. Dr Hamish Cameron, a consultant child psychiatrist who has served as an expert witness in many cases, describes this as the belief that young children are best off with the parent with the closest resemblance to the Madonna. Where judges sees their first duty as preserving the mother-child dyad, their solution in some intractable cases will be to remove the father from the picture'.
Despite a government promise to introduce Shared Parenting legislation in 2014 and thereby overcome the 'Tender Years' doctrine there was considerable opposition from feminist dominated charities led by the former President of the Family Division, Dame Butler-Sloss, in the House of Lords. Instead of introducing Shared Parenting legislation, similar to Australia, the Children and Families Act 2014 took away the child's right to 'direct' contact with his or her parents post separation. This is a violation of Article 9 of the UN Convention on the Rights of the Child; 'States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests'.
A "history of responsible campaigning and writing on issues relating to family relationships"
Lord Justice Thorpe, Vice President of the UK Family Division, 30 July 2004
"I am very grateful to all those, like yourself who have written and particularly where you have been able to demonstrate your own thinking from the experiences you have had. Congratulations on your battle"
The former Home Secretary, and dad, David Blunkett, 22 March 2005
"Those videos helped a lot; that’s what inspired me to go to court of my own…please thank him for me – tell him my son will have a normal life thanks to people like him"
Father - Name supplied, 26 June 2015
The book is also available online from AMAZON. It contains extracts from the UK debate on the Children & Families Act 2014 as well as a submission put before the UN Committee on the Rights of the Child. It sets about trying to explain why Case Laws in family proceedings are nothing more than a house of cards because they are based on flawed research evidence.
T H E 'T E N D E R Y E A R S'
D O C T R I N E
If, for example, you are a successful business man who has never been in trouble with the law you might expect the UK Family Court to be impartial and objective. Perhaps you have heard of 'barmy' fathers climbing buildings because of problems with access to their child or children post separation but told yourself you are not like them! But if you think about the situation even Sir Bob Geldof, Prince Andrew and the former Home Secretary, David Blunkett, have experienced problems!
Although fathers might expect to be treated fairly by the UK Family Court there is a psychological theory prevalent amongst judges and magistrates called the 'Tender Years' doctrine that discriminates in favour of mothers.
The former Vice President of the Family Division stated in the Court of Appeal that the author has a 'history of responsible campaigning and writing on issues relating to family relationships'. The foundation of the campaigning and writing is the application of his academic qualifications as a teacher from Child Psychology and Child Sociology together with his practical experience of the County Court and Royal Courts of Justice. This has provided him with a knowledge of how the so-called 'welfare principle' is interpreted by Case Laws in UK family proceedings.
D E P U T Y P R E S I D E N T
O F T H E
S U P R E M E C O U R T
According to Baroness Hale, now Deputy President of the Supreme Court,
'The father has a point of view which he wishes to advocate. His Honour Judge Milligan described it as a political point of view, but it is not political in a party-political sense. There are many people who might call it political in the gender political-sense for there are many ways in which that word can be used. He has the view that the courts and the law have been too respectful of the relationship between mothers and their children to the detriment of the importance of the relationship between fathers and their children'.
'He argues that one of the purposes of the Children Act 1989 was to redress the balance: to promote a more equal sharing of responsibility for children between mothers and fathers and to promote the maintenance a good relationship as possible between children and each of their parents should, unhappily, their parents not be living together. The father is correct that that was one of the principles behind the Children Act 1989, in which I take a certain amount of pride'. (4 February 2003)
As the Baroness Hale describes in this judgment the courts in the UK are 'too respectful of the relationship between mothers and their children to the detriment of the importance of the relationship between fathers and their children'. A reason the Family Court is too respectful of the relationship between mothers and their children and not fair to fathers is because of the 'Tender Years' doctrine.
F O R M E R
H O M E S E C R E T A R Y
The former UK Home Secretary, and dad, David Blunkett has written a personal note to the author to say,
'I am very grateful to all those, like yourself who have written and particularly where you have been able to demonstrate your own thinking from the experiences you have had. Congratulations on your battle'.
Although there are not supposed to be 'precedents' in private family law because every child is an individual and each case different the same could be said for criminal cases and just like criminal law, the Family Court has its own set of precedents called Court Authorities or Case Laws made by judges usually in the Court of Appeal or High Court.
It is because formal justice requires 'consistency' the judiciary are obliged to follow the doctrines of 'stare decisis' and 'ratio decidendi' which means they must respect and follow decisions of other judges at the same level or higher courts.
It was Sir Roualeyn Cumming-Bruce who referred to 'children of tender years',
'It has also been said that it is not a principle but a matter of observation of human nature in the case of upbringing of children of tender years,that given the normal commitment of a father to support the family, the mother, for practical and emotional reasons, is usually the right person to bring up the children'.(Per Sir Roualeyn Cumming-Bruce in Re H (a minor)1 FLR 51, CA.1990)
The former Master of the Rolls, Lord Donaldson, followed this court authority and made the precedent that now forms a cornerstone of private family law when he stated,
'At the risk of being told by academics hereafter that my views are contrary to well-established authority, I think that there is a rebuttable presumption of fact that the best interest of a baby are best served by being with its mother, and I stress the word 'baby'. When we are moving on to whatever age it may be appropriate to describe the baby as having become a child, different considerations may well apply. But, as far as babies are concerned, the starting-point is, I think, that it should be with its mother'.
As far as judges and magistrates in the Family Court are concerned by adopting these precedents they can lawfully restrict a father's relationship with his child or children during the 'tender' years to an insignificant level.
W E B S I T E S
P U B L I C A T I O N
R E V I E W S
"It was thoughtful of you to enclose a copy of your book 'even Toddlers Need Fathers' and Her Majesty has noted your concerns"
Buckingham Palace, 26 July 2006
"Very many thanks for sending me a copy of your
interesting and informative guide on 'even Toddlers
Need Fathers'. I much appreciate your drawing my
attention to it"
Professor Sir Michael Rutter, 13 March 2002
"The contents of your letter will be brought to the attention of the United Nations Committee on the Rights of the Child. The information you provided will be particularly of interest to the Committee in the framework of its consideration of the United Kingdom's periodic report"
Paulo David, Secretary to the UN Committee on the Rights of the Child, 13 March 2001
A B 0 U T T H E
' R E S P O N S I B L E ' W R I T E R
A N D C A M P A I G N E R
Besides writing 'even Toddlers Need Fathers' Kingsley or Kip Miller has corresponded with the Australian Attorney General's Department regarding the work of the Child Psychologist Jenn McIntosh PhD and appeared on an Australian radio program called 'Dad's On the Air'. In the UK he has campaigned against the Nuffield Foundation and the House of Commons Chair of the Justice Select Committee who opposed Shared Parenting legislation. His two YouTUBE video channels together have approaching one million views. In his spare time he enjoys cycling and playing racquet sports. If you are interested in the welfare of children and their separated fathers you can also 'friend' Kip on facebook.
T R A N S P A R E N C Y I N F A M I L Y
C O U R T S A N D P U B L I C A T I O N O F
J U D G M E N T S - H A V E Y O U R S A Y
Sir James Munby, the present President of the Family Division, issued Practice Guidance in 2014 to bring about ‘an immediate and significant change in relation to the publication of judgments in the Family Courts.' It was issued in a bid to bring about greater transparency in the way in which the courts operate so as to improve public understanding of the court process and increase confidence in the court system. The author was granted special permission to publish the judgments from his own family proceedings by Lord Justice Thorpe and Lord Justice Clarke. By reading these judgments you can find out for yourself how the 'Tender Years' doctrine was applied in UK family proceedings by a Circuit Judge in the Southampton County Court. Do you think the publication of judgments should be prevented or do they provide a useful insight into the workings of the 'secretive' family proceedings?