Lady
Justice Hale now the Baroness Hale of Richmond - Court of Appeal - 8
June 2000
17. He appends to his skeleton argument a document entitled 'Disputes in One of Fact which Involves Legal Authorities'. This is so well written that it could almost be an academic article. In this the father argues that the courts themselves have adopted some sort of maternal preference, and in doing so they have failed to have a proper regard to the more recent psychological literature and that, in any event, they are wrong; gender is not an appropriate guide as to who is the most suitable parent or as to how a child should be parented.'
'Disputes
in One of Fact which Involves Legal Authorities'
His Honour's remarks
concerning the 'Dependency Theory' which His Honour said was
'generally accepted' and the Appellant's background in teaching has
caused confusion and distrust which now forms the substantive issue
in this appeal.
His Honour's remarks
may be attributed to the examples of case law which form precedents
in the Family Division. It is on this body of knowledge His Honour
has relied to form His opinions and make His orders. This body of
knowledge is based on a false premise. It is the present
'interpretation of the law' used as the criteria for making section 8
orders which the Appellant is also seeking to appeal against.
Dewar (1992 Law and
Family p 369) describes the current situation in the following way,
A child's emotional
needs are perhaps the least determinate factor of all. Bowlby's
theory of 'Maternal Deprivation', which stressed 'the absolute need
of infants and toddlers for the continuous care of their mothers'
(Bowlby 1965, p 18), has exercised a considerable influence over the
minds of judges; 1 although Maidment suggests that, 'current judicial
thinking displays a tension between the earlier maternal preference
and a less priori, more open-minded approach to whatever is in the
best interests of the child.' (1984, p 177).
Recent decisions of
the Court of Appeal have continued to display this tension. For
example, it has been said that although there is no presumption that
young children should be with their mothers, it is nevertheless the
case that it is, 'natural for young children to be with their mothers
but, where it is in dispute, it is a consideration but not a
presumption'.2 Other considerations, such as the continuity of the
mother-child relationship, are equally important.3
However, 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'.4 This has been reinforced by a
reluctance by the Court of Appeal to permit fathers either to share
care of children with other members of their own family, or to give
employment in order to care for the children themselves.5 Such
statements are, however, also explicable, not as an expression of a
maternal preference, but as a general affirmation of the current
sexual division of labour' (Brophy 1985, p100) in which women are
primarily responsible for child care during marriage and after. This
is reflected in the fact that in uncontested cases, as we have seen,
the vast majority of couples decide to leave the children with the
mother.
In particular it is
the 'tension' displayed by judges in the Court of Appeal which is
also the focus of this Appellant's distrust and concern.
Barton and Douglas
(1995, Law and Parenthood, p131 ) refer to the former Master of the
Rolls Lord Donaldson's general point regarding gender in 1992,
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 interests 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.6
These opinions are
summarised by the account of the criteria used in making section 8
orders given in Butterworths Family Law Guide 1997 which states under
the heading, 'The age of the child.' (p 269)
8.8 There is no
presumption of law that a child of any given age is better off with
one parent or the other. The only legal principle involved is that
the welfare of the child is paramount. However, no court will be
ignorant of what would be the natural position if all other things
were equal. A very young baby will normally be with his/her mother.
It has therefore been held that there is a rebuttable presumption of
fact (not law) that the best interests of the baby are served by
being with its mother (although different considerations may well
apply when moving on to whatever age it might be appropriate to
describe the baby as having become a child) 7
It can be seen from
this description that over the years the cumulative effect of a
series of precedents has given the Family Division a criteria for
making section 8 orders which closely ressembles Bowlby's theory of
'Maternal Deprivation'. This explains how this theory which stresses
'the absolute need of infants and toddlers for the continuous care of
their mothers' continues to 'exercise a considerable influence over
the minds of judges.' Both the Bowlby theory and the Family
Division's 'rebuttable presumption of fact' are based on this
premise.
His Honour described
this 'interpretation of the law' as the 'Dependency Theory' which is
'generally accepted'. According to this 'consideration' in the
Appellant's case his son should not be separated from his mother for
more than 2 hours until he is at least 4 years old and that 'any'
application made during this period must be considered vexatious or
frivolous. It is the Appellant's argument that this premise is wrong
and it follows that the authorities and therefore the orders which
rely on this premise must also be wrong.
The Appellant uses as
his well-established authority the work of Rutter. Rutter was made an
Honorary Fellow of the British Psychological Society and the American
Academy of Child Psychiatry. In 1987 he was elected a Fellow of the
Royal Society and was knighted in 1992. His pre-eminent work on child
psychology 'Maternal Deprivation:Reassessed' states,
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 reopened and re examined. The evidence is unequivocal that experiences at all ages have an impact.iv. The first few years do have a special importance for bond formation and social development.
The Appellant states
that according to Rutter (1) there is no reason the father should not
have comparable contact time even from an early age. (2) There is no
such thing as a period during early life when events, such as
applications made to court, have a special impact. (3) Although
mothers may claim that children are damaged in some way by contact
with the father this also is not true. (4) Investigations have
demonstrated the importance of a child's relationship with people
other than the mother.
The Appellant seeks to
challenge the following authorities in the Court of Appeal;-
Lord Donaldson's
general point regarding gender in 1992,
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 interests 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.6
There is no such
'rebuttable presumption of fact.' It is not possible to use the sex
of the parent as a guide to who is best suited to looking after
babies. As well as the work of Rutter the Appellant also uses the
pronouncements of the present Home Secretary who advised single
parent mothers to give up their babies for adoption. The Home
Secretary is responsible for The Family Court Welfare Service which
advises judges in the family section. The Home Secretary could not
make such statements if there was a 'rebuttable presumption of fact'
that the natural mother is the best person to bring up babies and
small children. Rutter states,
i. Investigations have
demonstrated the importance of a child's relationship with people
other than his mother.
There is no reason the
father should not receive comparable contact even at an early stage.
This 'rebuttable presumption of fact' is unreasonable and represents
a significant prejudice in the Family Division. The idea that 2 two
hour sessions is 'generous' contact for father and son is untenable.
The former Master of the Rolls is wrong in fact and law.
The Appellant seeks to
challenge the authority of Sir Roualeyn Cumming-Bruce (1992) when he
stated,
'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.'4
He was making a
fundamental error in judgment based on superficial observation not
empirical fact. According to Rutter,
iii. The old issue of
critical periods of development and the crucial importance of early
years has been reopened and re examined. The evidence is unequivocal
that experiences at all ages have an impact.
There is no reason
disputes in the family court section cannot be settled in the first
few years of a child's life. The Children Act states any postponement
will prejudice the welfare of the child. 'The Tender Years Theory'
avoids issues or stigmatises applicants, such as the Appellant, as
vexatious or frivolous for no valid reason. It is unreasonable and
represents a significant prejudice. It is wrong in fact and in law.
This principle is
acknowledged in Employment law. The Employment Relations Act 1999
states that 'Unmarried father who have acquired Parental
Responsibility by means of formal agreement with the mother or by
means of a court order' should be allowed the same rights as the
mother to 'Parental Leave' of thirteen weeks for each child under the
age of five, "for the purpose of caring for the child".
This interpretation in Employment law has highlighted the
inconsistency of Family law. If Parliament felt that there was a
'rebuttal presumption in fact' that a child under five could not be
cared for by the father it would would say so. This Employment law
does not make a difference between parents on the basis of their sex
so why treat parents differently in Family law?
The Appellant also
seeks to challenge the authority of Lord sic Justice Butler-Sloss
(1991) that although there is no presumption that young children
should be with their mothers, it is nevertheless the case that it is,
'natural for young
children to be with their mothers but, where it is in dispute, it is
a consideration but not a presumption'.2
It does not follow 'in
fact' or 'in law' that the sex of a parent is an accurate guide to
who is best suited to caring for even small children. According to
Rutter's research the defining quality of either adult is the love
and affection they share for their offspring.
i. Investigations have
demonstrated the importance of a child's relationship with people
other than his mother.
The law is clear that
both parents should be encouraged to bring up their children.
According to the present 'interpretation of the law' a
'consideration' in the Appellant's case means that his son should not
be separated from his mother for more than 2 hours until he is at
least 4 years old and that 'any' application made during this period
must be considered 'vexatious' or 'frivolous'. This is unreasonable
and represents a significant prejudice. Lord sic Justice Butler-Sloss
is wrong in fact and in law.
Rutter's research is
recognised by the European Convention on Human Rights, Protocol 7
Article 5, which states,
Article 5
Spouses shall enjoy
equality of rights and responsibilities of a private law character
between them, and in relations with their children, as to marriage,
during marriage and in the event of its dissolution. This Article
shall not prevent states from taking such measures as are necessary
in the interests of children.
This Article does not
represent an unattainable Utopia. It is not something a few
politicians dreamt up. It is a simple yet clear affirmation of the
important contribution both parents can make to the upbringing of
their children. The question that must be posed is why has the United
Kingdom not ratified this Article? It is because spouses do not enjoy
equality of rights and responsibilities because the Family Division
still believes in Bowlby's theory of 'Maternal Deprivation', which
stresses 'the absolute need of infants and toddlers for the
continuous care of their mothers'.
Does this mean the
welfare of children suffers in Europe because they are allowed to
have a proper relationship with their fathers? Of course it does not.
It only seeks to highlight the difference in attitude to the family
on the Continent and in this country. The tension and confusion
created in the Family Division in the UK is caused by the attitude of
successive judges to reaffirm Bowlby's theory based on superficial
observation rather than empirical fact.
A problem with
Bowlby's work is that it helps judges to feel good about their
decisions by pretending they are made for the welfare of the child
which allows judges to simply dismiss applications in a routine way
by saying that the 'Dependency Theory' is 'generally accepted'. It is
easier to go this way than to change. Here lies the greatest danger.
According to Rutter
the first few years do have a special significance but it is for
'bond formation and social development'. By seeking to exclude or
limit contact with the father to a meaningless level whether
wittingly or unwittingly this 'interpretation of the law' is really
damaging the welfare of children who appear in the family court
section by ignoring the contribution of both parents to the
psychological and sociological well being of the child especially in
early life.
Rutter called his book
'Maternal Deprivation;Reassessed' not because he is a plagiarist. He
gave it this name so he could make as bold a statement as possible
about the work of Bowlby. The greater encompasses the lesser and for
his work with children Rutter was knighted in 1992. The overall
effect of these precedents is to reaffirm the work of Bowlby. It
should be Rutter's research which informs the law, not the
'Dependency Theory', as it does in Europe.
It is also not
sufficient to argue each individual case on its merits. This would
act against the principle of natural justice in Family law. It is
important to look at the cumulative effect of these precedents taken
together as summarised in Butterworth's Family Law Guide 1997. This
'interpretation of the law' represents a 'Glass Ceiling' to the hopes
and aspirations of fathers who appear in the family court section.
According to Section
1, Article 6, of the European Convention on Human Rights,
Article 6
1. In the
determination of his civil rights and obligations or of any criminal
charge against him, everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial tribunal
established by law. Judgment shall be pronounced publicly but the
press and public may be excluded from all or part of the trial in the
interests of morals, public order or national security in a
democratic society, where the interests of juveniles or the
protection of the private life of the parties so require, or to the
extent strictly necessary in the opinion of the court in special
circumstances where publicity would prejudice the interests of
justice.
The Court of Appeal is
a court of appeal. It seeks to overturn decisions in single cases
which are 'plainly wrong.' The general effect of this process is that
no single judge is able to see the overall picture. It is assumed
that judges in family courts act in 'the best interests of the
child'. Judges are authorities in law not child psychology. They rely
on the experience and expertise of judges in higher courts to form
their own opinions to make decisions which 'may be considered
proportionate in the circumstances and compatible with the pursuit of
this aim'. If as a result of the judicial process or a lack of
expertise these precedents or this body of knowledge can be shown to
be faulty it must follow that the decisions made in the lower courts
must also be faulty or unfair.
The Court of Appeal
should not be seen to endorse or promote in word or deed a theory
which is plainly wrong. It is for this reason the Appellant is
seeking recognition in the Court of Appeal for the work of Rutter and
a change to the 'interpretation to the law' so that it is stated,
'There is no longer a
rebuttable presumption of fact in Family law that the best interests
of the baby are served by being with its mother. That the gender of
the parent should not be used as a consideration in the criteria for
making section 8 orders. 'The Tender Years Theory' ( or similar )
should not apply to any decision made in the Family Division'.
The Appellant has
shown how the judge in this case has based his opinions on these
precedents and why this body of knowledge is based on a false premise
which is damaging the welfare of the child.
(The Appellant states
that not a single child in the family court section will suffer as a
result of the Court of Appeal setting this precedent and recognising
Rutter's work.)
Notwithstanding the
section 91 (14) order imposed in this case the Appellant should be
very grateful if the Court of Appeal would hear this application.
References
1. See, eg, Re W (a
minor) (1982) 4 FLR 492. For empirical evidence, which does not
strong support for the existence of a 'maternal preference', see
Eekelaar and Clive 1977, Ch 6 and Maidment 1984, Ch 3; but see Priest
and Whybrow 1986, paras 4.20-4.27.
2. Per Lord sic
Justice Butler-Sloss in Re S (1991) 2 FLR 388, CA.
3. See, eg, Re A (a
minor) (1991) 2 FLR 388, CA.
4. Per Sir Roualeyn
Cumming-Bruce in Re H (a minor) (1990) 1 FLR 51, CA.
5. Per Lord Justice
Ormand in Plant v Plant (1982) 4 FLR 305 at 310; Dicocco v Milne
(1983) 4 FLR 247.
6. Lord Donaldson MR
(1992) 2 FLR 332, 336.
7. See Re W (Residence
Order: Baby) (1992) 2 FCR 332, (1992) 2 FCR 603. See also, eg Re A
(1991) 2 FLR 394, (1991) FCR 569 and RE S (1991) 2 FLR 388., (1991)
FCR 155