even Toddlers Need Fathers: United Nations Convention

Complaint regarding the violation of Article 9 of the UN Convention on the Rights of the Child to the Human Rights Council

The original complaint was made with reference to the violation of Article 9 of the UN Convention on the Rights of the Child to the Committee on the Rights of the Child. However according to the letter dated 22 May 2014 Ref; G/SO CRC-IC GBR (GEN) from the UN Petitions & Inquiries Section the application was inadmissible because Great Britain is not a State party to the Optional Protocol to the Convention on the Rights of the Child.

Nevertheless a complaint to the Human Rights Council can be made under the Complaint Procedure previously known as 1503 procedure which was adopted under resolution 5/1 entitled “Institution-Building of the United Nations Human Rights Council”.

This complaint procedure was established to address; (1) consistent patterns of gross and reliably attested violations of all human rights and all fundamental freedoms occurring in any part of the world and under any circumstances, as well as, (2) communications submitted by individuals, groups, or non-governmental organizations that claim to be victims of human rights violations or that have direct, reliable knowledge of such violations.

It is in accordance with the criteria for this new procedure the complainant respectfully resubmits the substance of his complaint made to the Committee on the Rights of the Child which was made in five parts;

PART ONE - PETITION TO EXAMINE THE UK VIOLATION OF ARTICLE 9 OF THE UN CONVENTION ON THE RIGHTS OF THE CHILD; This gives specific details of the violation. In particular it goes to show how progressive legislation which would have reinforced the child's right to a relationship with both parents post separation, in the form of Shared Parenting, was rejected in the House of Lords by an amendment made by a retired judge and former President of the Family Division, Baroness Butler-Sloss. The amendment now states that involvement post separation between children and their parents can be either 'direct' or 'indirect'. ('Indirect' usually means by correspondence or telephone).

PART TWO – DISPUTES IN ONE IN FACT WHICH INVOLVES LEGAL ARGUMENTS; Includes a submission by the complainant to the Court of Appeal in 2000 made before Lady Justice Hale, now Baroness Hale Deputy President of the Supreme Court. This document cites a reference which states,'current judicial thinking (2000) displays a tension between the earlier maternal preference and a less priori, open minded approach to whatever is in the best interests of the child'.

PART THREE – CHARITIES & THE VIOLATION OF THE RIGHT OF CHILDREN IN THE UK; Demonstrates how political pressure was brought to bear to change the Children & Families Act 2014 in favour of the 'earlier maternal preference' despite the government consultation process intended to implement Shared Parenting legislation.

PART FOUR – THE WELFARE OF CHILDREN IS PARAMOUNT; Refers to the progressive ideas of the 'architect' of the Children Act 1989, Baroness Hale, which are cited in contrast to the regressive views of Baroness Butler-Sloss who tabled the amendment to the Children & Families Act 2014 taking away the child's right to direct contact with his or her parents post separation.

ADDENDUM – After the submission to the Committee on the Rights of the Child, Baroness Butler-Sloss gave an interview in which she described how the new Children & Families Act 2014 would operate in private family law;

I would like to see I must say, mothers who flout contact orders required to do all sorts of things that don’t actually send her inside. I can see absolutely no reason why she shouldn’t do community service. I should like to see her penalised in all sorts of inconvenient ways as long as it doesn’t have any impact on her care of the child. So as long as the child is over 5 or goes to a child minder, then there is no reason why she shouldn’t be required to go and clean the streets, whatever it may be. I would make her do something really unpleasant so that she understands the consequences of this. But to send her to prison is counter productive, because the child will not want to know the man who has sent his mother to prison, particularly when she comes back and tells him about it.

This statement publicly acknowledges the 'Tender Years' doctrine as the basis of changes made in private family law and demonstrates how the 'tension' in 'judicial thinking' described in 2000 was resolved in the Children and Families Act 2014 in favour of the 'earlier maternal preference' instead of the 'less priori, open minded approach to whatever is in the best interests of the child' as advocated by Baroness Hale, Deputy President of the Supreme Court. Yet separation in private family law should not give the judiciary the right to remove children from either parent.

Furthermore because Family Courts are not open to the public it is impossible to say the extent of these gross and reliably attested violations of family life but the words of the former President of the Family Division demonstrate that the judiciary in Great Britain have operated contrary to the Human Rights of parents and children for many years, despite the protestations of the complainant.

RIDER TO THE COMPLAINT TO THE HUMAN RIGHTS COUNCIL

“Institution-Building of the United Nations Human Rights Council”

In response to letters addressed to Her Majesty the Queen and the Secretary of State, since making the submission to the Human Rights Council, the complainant has received the attached correspondence from Edward Timpson MP (24 June 2014) as the minister with responsibility for children and families.

The complainant is extremely grateful for the trouble taken by the Parliamentary Under Secretary of State for Children and Families who is known to be a supporter of Shared Parenting legislation.

However as the correspondence shows he has let his heart rule his head because he singularly fails to deal with the specific concern regarding the Children & Families Act 2014 which removes the child's 'right' to a relationship with both parents post separation.

This 'right' was removed by the amendment made by the retired judge and former President of the Family Division, Baroness Butler-Sloss, in the House of Lords.

In his letter the Parliamentary Under Secretary of State for Children and Families states,

The government firmly believes that children benefit from a relationship with both parents, when it is appropriate and in the child's best interests, and the 'parental involvement' provision in the Children & Families Act 2014 reflects the importance of this.

But it does not follow that if the government firmly believes that children benefit from a relationship with both parents post separation the State party should remove the child's 'right' to a relationship post separation.

If the welfare of children is paramount the logical recourse and redress for the State party is to change the Children & Families Act 2014, in the House of Commons, to restore the child's 'right' to a relationship with both parents post separation.

The Parliamentary Under Secretary of State for Children and Families goes on to state,

I'd like to reassure you that the legislative framework that governs family law cases is gender-neutral and focussed on the welfare of children, not on the 'rights' of parents. However we recognise that there is a perception of bias in the courts. One of the aims of the parental involvement clause in the Act is to address this perception and help restore public confidence in the system.

But the initial submission to the Human Rights Council included a transcript of an interview given by Baroness Butler-Sloss regarding her amendment to the Children & Families Act 2014, in which she states;

The complainant includes with this rider a more legible copy of the original interview given by Baroness Butler-Sloss.

It is plainly wrong for the Parliamentary Under Secretary of State for Children and Families to claim that one of the aims of the parental involvement clause in the Act is to address the perception and help restore public confidence that the 'legislative framework that governs family law cases is gender-neutral' when Baroness Butler-Sloss says that mothers should avoid going to prison or be penalised until the 'child is over 5 or goes to a child minder'.

This view of private family law by the judiciary is commonly referred to as the 'Tender Years' doctrine and reinforce the perception that the 'legislative framework that governs family law cases' is not gender-neutral.

To help the Human Rights Council the complainant also includes with this rider a copy of an article from the Daily Mail newspaper given by another senior judge Lord Justice McFarlane, 'Separated mothers must not get away with 'Catherine Tate justice' and ignore dads' rights, says Appeal Court judge' from 27 June 2014. This article states,

Mothers who fail to obey court rulings will in future be ‘brought up short’, the judge said. The warning from Sir Andrew McFarlane, one of the country’s most experienced family judges, follows a series of reforms earlier this year designed to speed up cases which decide on how separated parents will share the care of their children. It follows years of failure to enforce orders giving fathers contact with their children. In around 4,000 cases a year fathers go back to court repeatedly to try to get access to their children because mothers defy the courts. Judges have rarely fined or imprisoned intransigent mothers because most believe that to punish the mother would harm the children. At one point the last Labour government considered, and then dropped, the idea of making disobedient mothers wear electronic tags. Sir Andrew said in a speech that he hoped the reforms introduced this spring will compel more mothers to stick to the rules. ‘Where, post separation, a child lives with one parent, it is hard to underestimate the expectation that the system will now place upon that parent to respect and to meet the need for the child to have a good, sound, ordinary relationship with the other parent,’ he said.

This article describes the operation the Tender Years doctrine and demonstrates that the legislative framework that governs family law cases 'governs family law cases' is not 'gender-neutral' because most judges like Baroness Butler-Sloss rarely fine or imprison intransigent mothers as they believe to 'punish the mother would harm the children'. The evidence shows that the amendment was made to the Children & Families Act 2014 not to benefit children but to reinforce the view of the judiciary about what is in their best interests.

The complainant once again repeats his sincere gratitude to the Parliamentary Under Secretary of State for Children and Families for his attention to his concerns. But the complainant would be doing a disservice not only to Her Majesty the Queen and the Secretary of State for raising these concerns in the first place, but most of all to the children who will suffer as the result of a bad law that takes away their Human Right to family life.

It is on this assumption the Tender Years doctrine is founded and it was on this basis Baroness Butler-Sloss introduced the amendment to the Children & Families Act 2014.

Once again if the welfare of children is paramount the logical recourse and redress for the State party is to change the Children & Families Act 2014, in the House of Commons, to restore the child's 'right' to a relationship with both parents, post separation.

Baroness Butler-Sloss states, 'I would like to see I must say, mothers who flout contact orders required to do all sorts of things that don’t actually send her inside'. But if judges take away the ultimate sanction in this way there is nothing forcing mothers to obey court orders. If a judge makes an alternative order for Community Service there is nothing to oblige the parent to attend because they now know that the courts will not put her 'inside' however many times she fails to attend, according to Baroness Butler-Sloss.

However this principle does not simply apply to court orders for Community Service but also to direct involvement with the father post separation. As the interview with Sir Andrew McFarlane shows, there is an 'expectation that the system will now place upon that parent to respect and to meet the need for the child to have a good, sound, ordinary relationship with the other parent’. But as the comments made by Baroness Butler-Sloss show she does not believe mothers who break court orders before the child is five years old should go to prison, so why should they 'bother' to comply?

The complainant uses this evidence to support his complaint to the Human Rights Council that you cannot build an institution to protect the human right to family life and in particular the welfare of children if you have one judge saying one thing and another saying something different.

The present system of formal justice is fatally flawed because Case Laws are based on the false assumption made by many judges that 'to punish the mother would harm the children'.

This contradiction will necessarily lead to some judges like Sir Andrew McFarlane making a court order on the basis of his own understanding of child development to allow a relationship with the father but another judge, who thinks like Baroness Butler-Sloss, regarding the same court order as counter-productive or not in the child's interests and potentially punishing the parent.

Baroness Hale DBE, QC, PC, FBA (Hon), who is regarded as an 'architect' of the Children Act 1989, stated in a judgment in the petitioner's own proceedings in 2003,

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.

The father points out that he has a certain amount of pride, so I make that comment in response. He also argues that his views are not politically motivated, but they arise because of his qualifications and experience as a teacher with a professional interest in child development, child psychology and the welfare of children.

This judgment reflects the purpose and direction of the United Nations Convention on the Rights of the Child as expressed in UK private family law.

Kingsley Miller, 26 June 2014

PETITION TO EXAMINE THE UK VIOLATION OF ARTICLE 9

OF THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD

Kingsley Miller MSc Cert Ed

1.1 In 2001 the petitioner made two submissions regarding the operation of private family law and the welfare of children in the UK that were put before the Committee on the Rights of the Child although the protocol relating to communication of complaints only came into effect in April 2014.

2.1 The petitioner is a qualified teacher with training in Child Psychology and Child Sociology, as well as a post-graduate certificate in Research Methods. Sir Matthew Thorpe, former Deputy Head of Family Justice and Head of International Justice, said that the petitioner has a 'history of responsible campaigning and writing on issues relating to family relationships' which includes the publication 'even Toddlers Need Fathers' described by Professor Sir Michael Rutter as an 'interesting and informative guide'.

3.1 Despite progress in private family law, the implementation of the Children & Families Act 2014 violates a fundamental article of the Convention on the Rights of the Child. It is a long established principle in private family law which is also accepted in many other jurisdictions, that it is the child's right to 'direct' involvement with both parents post separation.

4.1 This right is recognised in the Convention on the Rights of the Child by Article 9 which acknowledges that children should, 'maintain personal relations and direct contact with both parents on a regular basis'.

5.1 However the House of Lords amendment makes clear that involvement means either 'direct' or 'indirect'.

Lords Amendment to Part 2 – Family Justice

Lords Amendment 12*

17. Lords Amendment 12* would amend clause 11 (parental involvement) to make clear that involvement means involvement that is either direct or indirect but does not mean any particular division of the child’s time.

(Parliamentary Note)

6.1 Changing a 'right' to a 'privilege' has profound and wide ranging implications. It is also a violation of the Convention of the Rights of the Child.

Article 9

1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to Judicial Review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such a determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's residence.

2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.

3. States Parties shall respect the right of the child who is separated from one of 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.

7.1 The Convention on the Rights of the Child promises children 'direct' involvement. It is the child's 'right' not a 'privilege' and this change to private family law represents a significant violation.

8.1 Previously the petitioner contacted the Committee on the Rights of the Child regarding the 'Tender Years' doctrine, that is when all other factors are equal, custody of a child of tender years should be awarded to the mother.

8.2 He complained that this judicial presumption violated Article 2 of the Convention on the Rights of the Child, Non-Discrimination - 'States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status'.

8.3 Specifically in support for his complaint the petitioner cited the court authority from the former Master of the Rolls, Lord Donaldson (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'.

8.4 Lord Donaldson was following the earlier court authority of Sir Roualeyn Cumming-Bruce (1990) which mentions 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.

9.1 The petitioner also sought to challenge these Case Laws in the Court of Appeal and Baroness Hale of Richmond, DBE, QC, PC, FBA (Hon), who is regarded as an 'architect' of the Children Act 1989, recognised the influence of the 'Tender Years' doctrine in private family law when addressing the petitioner in her judgment (2003),

The father has a point of view which he wishes to advocate. The judge 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.

9.2 The Baroness, who is now Deputy President of the UK Supreme Court, went on to say,

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.

9.3 This judgment shows that the Deputy President of the UK Supreme Court recognised 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'.

10.1 The Children Act 1989 sought to reinforce the principles of the Convention on the Rights of the Child in private family law by trying 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'.

11.1 Why has the UK government taken this regressive step in private family law by removing the child's right to direct involvement post separation when other jurisdictions around the world are following the view of the Deputy of the Supreme Court and recognising the importance of both parents by introducing Shared Parenting legislation?

12.1 According to the Interim Justice Review (2011) in 2006 there were over 111,000 children involved in applications for private law orders. In 2009 this had increased to over 137,000. This is putting the justice system 'under strain'.

12.2 However at the time of the Final Justice Review (Norgrove Report) the Daily Telegraph newspaper reported that plans to enshrine in law that a child has a 'meaningful relationship with both parents' were to be scrapped. (Fathers denied a right to see children by Christopher Hope and Robert Winnett, 2 November 2011).

12.3 Whitehall sources said there were 'concerns that it put too much pressure on judges to set out the exact length of time that each divorced parent should spend with their children'.

12.4 Yet as the result of an almost unprecedented expression of public support for Shared Parenting legislation the Queen’s Speech of 2012 included an undertaking to begin a consultation on options to change the law in England and Wales ('Queen's Speech boosts fathers' rights 9 May 2012 by Tim Ross, Political Correspondent, Daily Telegraph).

13.1 The Children’s Minister at the time said, 'We need to clarify and restore public confidence that the courts properly recognise the joint nature of parenting,' and 'We intend to legislate to stress the importance of children having an ongoing relationship with both their parents after separation'.

14.1 The importance of both parents to the upbringing of children was reinforced in a speech given by the Prime Minister, David Cameron, in his own constituency at the time of the 2011 UK Riots. He said,

Let me start with families. The question people asked over and over again last week was 'where are the parents? Why aren't they keeping the rioting kids indoors?' Tragically that's been followed in some cases by judges rightly lamenting: "why don't the parents even turn up when their children are in court?" Well, join the dots and you have a clear idea about why some of these young people were behaving so terribly. Either there was no one at home, they didn't much care or they'd lost control.

Families matter.

I don't doubt that many of the rioters out last week have no father at home. Perhaps they come from one of the neighbourhoods where it's standard for children to have a mum and not a dad......where it's normal for young men to grow up without a male role model, looking to the streets for their father figures, filled up with rage and anger. So if we want to have any hope of mending our broken society, family and parenting is where we've got to start.

15.1 The government consultation listed four options for Shared Parenting legislation;

Option 1: requires the court to work on the presumption that a child's welfare is likely to be furthered through safe involvement with both parents – unless the evidence shows this not to be safe or in the child's best interests.

Option 2: would require the courts to have regard to a principle that a child's welfare is likely to be furthered through involvement with both parents.

Option 3: has the effect of a presumption by providing that the court's starting point in making decisions about children's care is that a child's welfare is likely to be furthered through involvement with both parents.

Option 4: inserts a new sub-section immediately after the welfare check-list, setting an additional factor which the court would need to consider.

15.2 The Committee on the Rights of the Child should be aware that the government consultation did not arise from any political party or lobby group but a genuine expression of the will of the UK public or 'vox populi'.

16.1 However it was in the face of well coordinated resistance that these options were rejected.

16.2 In particular opposition came from the respected charity the Nuffield Foundation. The charity has an annual expenditure of over £10m and promoted a campaign with the slogan 'Shared Parenting Legislation is not in the Interests of Children' based on the so-called 'Australian experience' (2011).

16.3 The newly installed Director of the Nuffield Foundation, Sharon Witherspoon MBE, went on record to state that in Australia 'You had fathers using this as a way of saying, If you don't walk away with less money than you would otherwise get then I am going to go after my 50 / 50 rights'. Another member of the grant making committee at the Nuffield Foundation, Mavis MacLean CBE also argued on the BBC against giving parents the 'right' to contact with their children citing the extreme conduct of fathers as her evidence.

17.1 However at the time, the petitioner was in correspondence with the Attorney General's Department in Australia, with the support of the Shared Parenting Council of Australia SPCA, and even appeared on a radio program in that country called 'Dads on the Air'.

17.2 Shared Parenting legislation was introduced in Australia in 2006 and has made a positive impact on private family law.

17.3 The comment regarding fathers made by the Director of the Nuffield Foundation is totally without foundation and contrary to reports in the UK about the 'Australian experience' Shared Parenting has led to (1) a decrease in litigation and (2) no increase in domestic violence with the former Attorney General, Nicola Roxon, stating that the government would not 'roll back' the reforms.

17.4 The petitioner also mounted an unsuccessful legal challenge in the High Court regarding the Nuffield Foundation charity, citing the many inaccuracies in this campaign (2012).

18.1 The leader of the anti-Shared Parenting group in the Houses of Parliament is the retired judge and former President of the Family Division, Baroness Butler-Sloss. Her views are informed by the 'Tender Years' doctrine as expressed in Case Laws.

19.1 During her period sitting in the House of Lords Baroness Butler-Sloss was obliged to take the extraordinary action of making a public apology in Parliament to the campaign group Fathers4Justice.

Former High Court judge Baroness Butler-Sloss has apologised for wrongly claiming Fathers4Justice made death threats against her.

The crossbench peer made the claim in December during a discussion on the safety of judges.

Lady Butler-Sloss said while she had received death threats 'it was not true' they were from Fathers4Justice.

She apologised 'unreservedly' to the organisation, in a personal statement in the House of Lords.

Fathers4Justice said it was 'delighted' by the public apology.

Lady Butler-Sloss told peers she had 'not prepared' her remarks, made in an intervention during a discussion on the Crime and Courts Bill.

'I referred to death threats that I had received as a judge from dissatisfied litigants,' she said.

'Most unfortunately, in referring to the people who had made such threats against me, I included the unwarranted suggestion that the organisation Fathers4Justice was among those who had made such threats. It was not true.'

She said two newspapers had picked up her remarks prompting Fathers4Justice, which campaigns for fathers to be given access to their children, to get in touch with her and request a public apology.

Nadine O'Connor, the group's campaign director, said: 'The making of false allegations within the family courts is something that our fathers have to deal with on a daily basis, so as an organisation we were extremely upset about the allegations that were made against us.'

(Baroness Butler-Sloss sorry for Fathers4Justice 'death threat' claim, BBC NEWS, 28 February 2013)

20.1 The petitioner argues that similarly the House of Lords was incorrectly briefed by Baroness Butler-Sloss in the debate on the Children & Families Act 2014.

20.2 In the same way she inaccurately blamed Fathers4Justice, Baroness Butler-Sloss also misdirected the House of Lords in the debate regarding Shared Parenting legislation.

20.3 It is because her views are informed by the Case Laws that she sought to influence the debate on Shared Parenting so that fathers would not have the right of 'direct' involvement with their children post separation in accordance with the 'Tender Years' doctrine.

20.4 But this is not an accurate interpretation of private family law. It is not the father's right to direct involvement with his child or children post separation. It is the child's 'right'.

20.5 Baroness Butler-Sloss has turned private family law on its head because of her own misguided views.

21.1 Sir Matthew Thorpe also said that the petitioner expressed himself with 'great courtesy and moderation' but changing private family law so that children no longer have the 'right' to a relationship with both parents post separation is beyond the pale.

22.1 When parents separate it is almost never because of domestic violence and very rarely as the result of concerns for the care of their children. The former most senior judge in the Family Division, Baroness Butler-Sloss, must be aware of these facts.

23.1 The relationship between children and their parents should be indissoluble because it is the foundation of family life and society.

24.1 No civilised country would treat family life in this way.

25.1 The petitioner is shocked by this violation to the Convention on the Rights of the Child and if the members of the Committee on the Rights to the Child are inclined to view this change to private family law in the same way, he would gratefully welcome the opportunity for an oral hearing so that he may be allowed to give a more detailed account of this complaint against the UK government.

Kingsley Miller, May 2014

'DISPUTES IN ONE IN FACT WHICH INVOLVES LEGAL AUTHORITIES'

Kingsley Miller MSc Cert Ed

In support for his 'Petition to examine the UK violation of Article 9 of the UN Convention on the Rights of the Child', the petitioner includes this document called, 'Disputes in One of Fact which Involves Legal Authorities' from 8 June 2000.

This was put before Lady Justice Hale in the Court of Appeal. She is recognised as an 'architect' of the Children Act 1989 and is now Baroness Hale of Richmond and Deputy President of the UK Supreme Court.

The petitioner wishes to now put this document before the Committee on the Rights of the Child to oppose the UK government legislation taking away the child's 'right' to a relationship with both parents post separation.

The opposition to Shared Parenting in the House of Lords was led by Baroness Butler-Sloss a former President of the Family Division who based her arguments on Case Laws sometimes referred to as the 'Tender Years' doctrine.

Lady Justice Hale said,

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 (8 June 2000)

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 Butterworth's 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 resembles 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,

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.

He was making a fundamental error in judgment based on superficial observation not empirical fact. According to Rutter,

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'.

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

ADDENDUM

This document was included in the petitioner's publication 'even Toddlers Need Fathers' described by Professor Sir Michael Rutter as an 'interesting and informative guide'.

Kingsley Miller, May 2014

CHARITIES & THE VIOLATION OF THE

RIGHTS OF CHILDREN IN THE UK

Kingsley Miller MSc Cert Ed

Introduction

This document, 'Charities & the Violation of the Rights of Children', is submitted in further support for the petition to the Committee on the Rights of the Child regarding the violation of Article 9 by the UK government.

The petitioner complains that even though the UK public are in favour of a more enlightened approach to private family law, the previous document entitled 'Disputes in One of Fact which Involves Legal Authorities' from 2000, showed how the judiciary are wedded to the 'Tender Years' doctrine, as advocated by Baroness Butler-Sloss in the House of Lords.

Yet taking away the child's right to a relationship with both parents post separation is indicative of not just an historical trouble with the judiciary but an endemic difficulty with academics and charities from the rest of UK society.

The Family Justice Review (Norgrove Report)

For example, the UK government Family Justice Review from November 2011 states,

4.23. Drawing on international and other evidence we opposed legislation to encourage ‘shared parenting’. The evidence showed that people place different interpretations on this term, and that it is interpreted in practice by counting hours spent with each parent, disregarding the quality of the time. The thorough and detailed evidence from Australia showed the damaging consequences for many children. So we recommended that;

- No legislation should be introduced that creates or risks creating the perception that there is a parental right to substantially shared or equal time for both parents.

Our opposition to legislation that might give rise to a shared parenting presumption attracted a large response in consultation. Charities, legal and judicial organisations and academics (including Professors Helen Rhoades, Liz Trinder, Rosemary Hunter and Judith Masson and the Network on Family Regulation) supported the panel’s stance.

'I am encouraged that the Review has opted against a shared care presumption. That is entirely consistent with the research evidence on what works for children' - Professor Liz Trinder, consultation response.

But the academics cited by the Family Justice Review are well known for their feminist views on private family law.

Helen Rhoades working in Australia has suggested, 're-conceiving the doctrine of the primary caregiver as a status quo principle’. In the Family Law Journal, Judith Masson and Liz Trinder opposed guidelines suggested by the charity Families Need Fathers ('Shared Parenting: the Law, the Evidence and Guidance from Families Need Fathers') and Rosemary Hunter is currently working on the 'Feminist Judgments Project' in which a group of 'feminist socio-legal scholars have written alternative feminist judgments in significant legal cases'.

The petitioner complains to the Committee on the Rights of the Child that it follows that evidence from these academics cannot be relied upon to be either objective or reliable.

The Nuffield Foundation charity

Similarly the Nuffield Foundation is one of the most influential UK charities and sponsored a campaign with the slogan 'Shared Parenting legislation is not in the interests of children' based on secondary sources with particular reference to Australia.

But over this period the petitioner was also in correspondence with the Australian Attorney General's Department with the support of the Shared Parenting Council of Australia SPCA and gave a 30 minute interview for 'Dad's on the Air' on Australian radio. He was aware that contrary to the claims made by the Nuffield Foundation charity, the Attorney General, Nicola Roxon, had reaffirmed the commitment to Shared Parenting legislation stating that the government had no intention of 'rolling back' the reforms.

It was because of this misrepresentation that the petitioner sought to challenge the Nuffield Foundation charity by way of Judicial Review in the High Court. As the Committee on the Rights of the Child can see, from a copy of the application included with this petition, it was submitted as a matter of 'urgency' because the petitioner feared that the UK government would legislate on the basis of information that would lead to the child losing the 'right' to a relationship with both parents post separation.

As part of his submission to the High Court the petitioner cited an interview given by the newly installed Director of the Nuffield Foundation charity, Sharon Witherspoon MBE, on how good research can influence the development of the law with reference to the 'Australian experience'.

If I look at family law it is understandable that whatever any current law is, there is a background of social concern about that area of law and one concern that is currently obviously very important is to do with how do you divide children's time after divorce or separation? Should it be the case that it reflects the split before the divorce or separation? Should there be an automatic 50 / 50 split, that a child spends half its time with the mother and half with the father? Should there be any principles that guide us at all? Or is each case so different that we can't provide any guidance?

Now, I think these are very complicated but one growing move has been to have a default 50 / 50 split, a bit like going back to Solomon's Judgment, and what we did is convene some academics, some very notable Australian academics who had looked at what happened when Australia passed a similar law, so had a lot of empirical information about what really happened to ordinary families, and brought them together with some UK academics to talk about that in the UK context at a time when we knew that some parliamentarians were very concerned about this, and were going to bring forward proposed legislation and what that research showed is that it may well be that in some cases, where it is usually mothers were obstructing access, that this 50 / 50 insured that kids saw their fathers.

But there were lots of other consequences that were not so positive. You had fathers using this as a way of saying, 'If you don't walk away with less money than you would otherwise get then I am going to go after my 50 / 50 rights'. You had cases where judges thought they had to do 50 / 50, so even though there were serious concerns over violence or safety things weren't dealt with as seriously as they might be and basically there were a lot of negative social consequences and we were able to fund work that pulled all of those findings from Australia together and looked at the context of the current UK law is and come out with a very clear message in the briefing paper that said this was a step that probably sic was not in the best interests of children, to have a blanket provision.

Now, I can't say that alone switched things but that was certainly I think useful to the Family Justice Review. I know they paid serious attention to the Australian evidence that we pulled together and I think it was influential to some of the parliamentarians and we mailed a copy of the paper out to all the MPs that would be voting on the issue.

This account is not accurate, for example, the Director of the Nuffield Foundation, stated Shared Parenting legislation led to fathers using this as a way of saying to mothers, 'If you don't walk away with less money than you would otherwise get then I am going to go after my 50 / 50 rights'. But this is not so. This is a common misconception based on anecdotal evidence. The Nuffield Foundation charity pulled together a 'lot of negative social consequences' but as a result provided the Family Justice Review and Parliament with a 'briefing paper' that gave a misleading account of Shared Parenting legislation in Australia.

'Shared parenting boosts children's rights'

As the Committee on the Rights of the Child can also see from the application to the High Court, as an exemplar to substantiate his own argument, the petitioner used an article from the 'Solicitors Journal' by Duncan Ranton who is a lawyer qualified both in Australia and the UK and with 'no axe to grind'.

In his article, 'Shared Parenting boosts children's rights'(13 February 2012) he states;

Last week, the Ministries of Justice and Education published a response to the Family Justice Review. One particular aspect attracted extensive press interest, namely the government’s commitment to pass legislation to enshrine a legal presumption of shared parenting. The government was responding to the recommendations of the Family Justice Review (FJR), chaired by businessman David Norgrove, which published its final report in November 2011.

In its interim report, the FJR advocated legislative change, drawing on evidence from Sweden and Australia about the real damage done to children in high-conflict disputes following parental separation. It suggested the insertion of a general statement of intent in the Children Act 1989 that reinforced the importance of children having a meaningful relationship with both parents post-separation.

Come the final report, however, the FJR had had a change of heart. Again citing the 'Australian experience', alongside contributions from individuals and groups opposed to legislative change, the review withdrew its earlier recommendation. Too great was the danger that to enshrine a child’s entitlement to have a meaningful relationship with both parents would create a perception of parental entitlement to shared or equal time. The government disagrees. Having accepted almost all of the FJR’s other recommendations, they take the view that legislative reform in this area is vital. Lessons learned from abroad will inform how the amendment is drafted they say. The message ought to be that courts will expect both parents to be involved in a child’s upbringing, save in exceptional cases.

It is not surprising that this recommendation should be the focus of so much press attention, nor that the issue has been reported along gender lines, with reform generally supported by fathers and opposed by mothers (and their respective interest groups). When parents separate, often (but not always) the children live with their mother. Parental dispute is mostly about the time they should spend with their father. My experience, both here and in Australia, has been that sometimes parents – usually mothers – have very good reasons for being concerned about children spending time with the other parent. Domestic violence and abuse cases are the obvious examples. Often, however, there are cases where parents – usually mothers – have no rational welfare reasons for objecting to children having contact with the other parent. Rather, their resistance seems fuelled by the bitterness that follows the breakdown of the adults’ relationship.

Contrary to media reports that this is the government championing father’s rights, however, the proposal to enshrine in legislation that it is important for children to have a meaningful relationship with both parents is not about parental rights. It’s about children’s rights – their entitlement to see and have quality time with both parents, save in exceptional cases. The expression ‘quality time’ is bandied about too frequently and carelessly. As a result, it has lost much of its credibility and currency. However, it has a meaning, to be found in the many longitudinal studies of children following parental separation: in short, children generally benefit hugely from seeing and spending good-quality time with both mothers and fathers.

Positive outcome

The FJR apparently shied away from its initial recommendation because of perceptions of what happened in Australia after legislative reform in 2006; that to confirm legislatively a child’s right to a meaningful relationship would translate into non-resident parents using that as a fulcrum to demand an equal division of time.

But was the legislation in Australia a disaster? No, far from it. In 2009, following a three-year study of 28,000 participants, the Australian Institute of Family Studies found the legislative reforms a substantial success. There was a decline in court filings and a shift away from parents rushing to court to resolve post-separation difficulties. A greater proportion of parents reported they were able to resolve issues themselves, supported by associated family relationship services. Nevertheless, the review confirmed that the family law system still had some way to go in responding effectively to the minority of cases where there were issues of family violence, child abuse, mental health or substance misuse. For children for whom these were not features of family life, the legislative reforms were found to have worked well.

I believe, therefore, the UK can benefit from Australia’s experience. We have seen the family justice budget decimated and access to courts to resolve parenting issues in anything other than truly urgent cases is beset by chronic delay. If parents know from the outset that a judge will approach most cases from the proposition that the child’s welfare requires a continuing and meaningful relationship with both of them, this will help promote agreement in many cases without the need to enter the court arena. That certainly seems to be the 'Australian experience'.

No legislation can ever realistically hope to cater for every permutation of circumstances. Rather, good legislation should be directed to the majority of cases, while ensuring sufficient flexibility remains so justice may be done in those that are exceptional. The government’s proposal strikes that balance. The introduction of a statement reiterating the importance of children’s relationships with both parents post-separation is appropriate for, and will assist in, the lion’s share of separated families. There will remain an important minority for whom this mission statement will be inappropriate to direct the outcome, because of child protection issues.

I welcome the government’s stance, and support it. Given the real and continuing problems with access to justice and funding, coupled with the damage research demonstrates children sustain during bitter and protracted custody disputes, we do not have the luxury of timidity or inaction. Reform is needed, and this reform is a positive one. (Issue: Vol 156 no 6 14-02-2012)

The Family Justice Review described the research evidence on Shared Parenting in Australia as 'thorough and detailed' with 'damaging consequences for many children'. Professor Liz Trinder confirmed this view and stated it is 'entirely consistent with the research evidence on what works for children'.

But Shared Parenting legislation has a 'positive outcome' and continues to work well in Australia.

The implication is that the 'Australian experience' was used as a 'straw man' by opponents of Shared Parenting legislation based on the assumption that nobody would make the necessary checks to confirm whether the claims were justified.

The evidence shows how prominent academics and well respected charities are using their power and status to promote their own feminist agenda over the rights of children.

Also in May 2012 the petitioner attended a seminar at the Palace of Westminster given by Professor Patrick Parkinson, an Australian government adviser from Sydney University, who confirmed the positive outcome of Shared Parenting legislation.

At the seminar Professor Patrick Parkinson faced hostile questioning from other academics, including Professor Liz Trinder, who disputed his account of Shared Parenting in Australia.

His version contradicts that of Professor Liz Trinder in the same way the account by the solicitor Duncan Ranton also contradicts the interview given by Sharon Witherspoon MBE.

A copy of the seminar paper was included in the bundle to the High Court but despite this evidence, as can be seen from copies of the judgments, 'on paper' and at the 'oral hearing', also attached to this petition the petitioner's application for a Judicial Review was rejected.

Above; The petitioner on the right with Professor Patrick Parkinson at his seminar held at the UK Houses of Parliament.

Fifth Periodic Report

It may be argued that the appropriate recourse and redress for the violation of children's rights in the UK is via a submission to the Periodic Report.

But this review was held in January 2014 with the next Periodic Report not scheduled until 2016.

The Department for Education takes the lead in coordinating the Periodic Report to the Committee on the Rights of the Child, securing contributions from the devolved administrations, which are responsible for implementing the Convention on the Rights of the Child in their jurisdictions.

In line with its role in 'facilitating the participation of civil society in monitoring the implementation of UN treaties' the Equality & Human Rights Commission conducted a call for views on the draft state report. The government organisation also commissioned the Children’s Rights Alliance England CRAE to coordinate a response to the call for views on behalf of the Children’s Sector in England.

But CRAE was selective and although the views of feminine or feminist organisations such as the Women’s Aid Federation were sought, those of the charity Families Need Fathers FNF or the campaign group Fathers4Justice were not.

This is not an insignificant detail because it is further petitioned that their exclusion by the Equality & Human Rights Commission from the Fifth Periodic Report is indicative of the discrimination faced by fathers in the Children's Sector and is a further violation of Article 2 of the Convention on the Rights of the Child by the UK government.

Article 2

1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.

Furthermore CRAE was a member of a 'consortium' of charities that included Coram Children's Legal Centre CCLC, Gingerbread, NYAS Advocacy, 4Children UK, NSPCC and Action for Children who supported the amendment put before the House of Lords by Baroness Butler-Sloss which is a violation of Article 9 of the Convention on the Rights of the Child.

2015: International Year of Co-parenting

Since making this petition to the Committee on the Rights of the Child the petitioner has been made aware of a proposal to ask the General Assembly of the United Nations to declare 2015: International Year of co-parenting and includes the full text here;

2015: International Year of Co-parenting

After the International Year of the Family in 1994 to remind us that the family is the basic unit of society and therefore deserves special attention,

Following the resolution adopted by the UN General Assembly entitled "A world fit for children" (S-27/2, 6 May 2002) which recognizes the shared responsibility of parents in the education and upbringing of their children, and the importance of making every effort to ensure that fathers have the opportunity to participate in the lives of their children.

In noting a transformation of family patterns in recent decades characterized among other things by an increase in the number of separated families and therefore the risk of disengagement of a parent,

we ask for

An international year to increase the awareness of the general public and all the elected officials in every nation on the equal importance of the roles of both parents – be they together, separated or divorced – in the upbringing of their child(ren).

A year to create opportunities and find solutions to promote and above all value the commitment of each parent to their child(ren); a year to focus on action and results, by the exchange of good practices.

A year to rethink greater equity (particularly in parenting time) between the two parents in case of separation / divorce in the best interest of the child.

A year to recognize the prime role of each parent and celebrate the commitment of both parents towards their (s) child(ren).

A year to remember that each child has two unique parents - father and mother – with the same rights and responsibilities to provide the best possible living conditions, to give him/her affection, assistance and protection, education, to encourage the development of his/her personality, to transmit values.

In this perspective, regardless of political allegiances, social or religious beliefs, father, mother, grandmother or grandfather, or just a citizen committed to human rights, we ask the General Assembly of the United Nations to declare 2015: International Year of co-parenting.

Conclusion

The 'Tender Years' doctrine is based on Dr John Bowlby's flawed theory of 'Maternal Deprivation' as described in 'Maternal Care and Mental Health' (1952);

Almost all the evidence concerns the child's relation to his mother, which is without doubt in ordinary circumstances by far the most important relationship during these years. It is she who feeds and cleans him, keeps him warm, and comforts him. It is to the mother that he turns when in distress. In the young child's eyes father plays second fiddle and his value increases only as the child becomes more able to stand alone.

It is sometimes argued that later in his career Bowlby's view changed but in 1986 when asked to choose his 'citation classic' he selected 'Maternal Care and Mental Health' because he said, 'It focussed attention on the relationship of a young child to the mother as an important determinant of mental health'.

Notably Bowlby went on to say in the same publication, 'For a recent evaluation of the field (by an erstwhile critic) see Rutter (Maternal Deprivation.1972 – 1978; new findings, new concepts, new approaches. Child Develop. 50:283-305, 1979).

In the petitioner's own proceedings Lady Justice Hale, now Baroness Hale, Deputy President of the Supreme Court, described the theory of 'Maternal Deprivation' and the crucial difference between the two approaches of Bowlby and Rutter in the following way,

That theory was that children were damaged by separation from their mother or mother figure. Sir Michael 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 (2000).

One of the purposes of the 2015: International Year of Co-parenting is to increase the awareness of the general public and all the elected officials in every nation on the equal importance of the roles of both parents – be they together, separated or divorced – in the upbringing of their children.

The 'Australian experience' proves that Shared Parenting legislation is practical and the government consultation document, cited in this petition, shows that there is already an overwhelming desire from the UK public for co-parenting.

It is the judiciary together with academics and charities alike that knowingly or unknowingly still operate according to the theory of 'Maternal Deprivation' to the detriment of children.

The petitioner believes that the 'family is the basic unit of society and therefore deserves special attention'. He would therefore respectfully ask the Committee on the Rights of the Child to consider using the evidence from this petition not only to restore child's rights in the UK but to endorse the reasons given for the proposal to the General Assembly of the United Nations to declare 2015: International Year of Co-parenting.

Kingsley Miller, May 2014

THE WELFARE OF CHILDREN IS PARAMOUNT

Kingsley Miller MSc Cert Ed

Introduction

This is the fourth and final document in support for a petition to complain against the UK government violation of Article 9 of the Convention on the Rights of the Child. The previous submissions include; (1) Petition to examine the violation of Article 9 of the UN Convention on the Rights of the Child. (2) Disputes in one in fact which involves legal authorities. (3) Charities & the violation of the rights of children in the UK.

The welfare of children

It is because the welfare of children is paramount that although the petitioner is a UK citizen he contacted the Australian Attorney General's Department regarding a set of guidelines which received widespread publicity produced by a clinical psychologist, Jenn McIntosh PhD. (Shared custody a mistake for the under-2s, say guidelines, Sydney Morning Herald, December 15, 2011).

The petitioner's book 'even Toddlers Need Fathers', described by Professor Sir Michael Rutter as an 'interesting and informative guide', is a critique of the 'Tender Years' doctrine which is based on Dr John Bowlby's flawed theory of Maternal Deprivation as used in UK family proceedings to decide court orders between children and their parents post separation.

Baroness Hale, Deputy President of the Supreme Court, described the theory of Maternal Deprivation and the crucial difference between the two approaches of Bowlby and Rutter in the following way,

That theory was that children were damaged by separation from their mother or mother figure. Sir Michael 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 (2000).

However because the work of Bowlby received considerable attention it has led some working in the Children's Sector to believe that his claim, made in 'Maternal Care and Mental Health' (1952), is an accurate reflection of current research in Child Development;

Although professionals are usually familiar with Bowlby's theory they are sometimes unaware of the contribution made by Professor Sir Michael Rutter and the petitioner includes with this petition a statement from a qualified teacher who received in-service training in 2001 which included this flawed theory.(2)

Dr McIntosh in Australia

In Australia Dr McIntosh has made contributions to national research and associated professional development programmes but more recently produced a set of guidelines for the Australian Association for Infant Mental Health called 'Infants and overnight care - post separation and divorce'.(3)

These guidelines appear to be based on the Tender Years doctrine which was confirmed when Dr Mcintosh was made Guest Editor for a publication of Family Court Review from July 2011 on 'Attachment, Separation, and Divorce: Forging coherent understandings for family law' which addressed these issues exclusively from a, 'Bowlby - Ainsworth attachment paradigm'. (Emery and Schepard, Family Court Review, 49:415–417).

This prompted the petitioner to contact the Attorney General, Nicola Roxon, on 3 January 2012. (4) The petitioner was also active on an online forum operated by the Shared Parenting Council of Australia SPCA and they supported his second letter to the Attorney General's Department on 16 January. (5)

Dr McIntosh's guidelines treat one parent as the primary attachment figure for 'comfort and security' in the same way as Bowlby described in his theory. In his paper from 1958 called 'The nature of the child's tie to his mother', (International Journal of Psycho-Analysis, 1958, 39, 350-373), he stated,

The tendency for instinctual responses to be directed towards a particular individual or group of individuals and not promiscuously towards many is one which I believe to be so important and so neglected that it deserves a special term. I propose to call it ‘monotropy’.

Research has shown that the idea a baby can only have a single primary carer, usually the mother, is misconceived.In reply, Cathy Rainsford Principal Legal Officer for Family Law in Australia, contacted the Executive Secretary of the SPCA, Wayne Butler, on behalf of the Attorney General on 27 February 2012. In this letter she mentioned the petitioner's concerns and clarified the contribution of Dr McIntosh to Australian Family Law.(6) In response to additional queries the Legal Officer contacted the petitioner again directly on 3 September (7) and 21 December (8) to clarify still further the involvement of Dr McIntosh and the 'effectiveness of Shared Parenting in Australia since the implementation of the 2006 family law reforms'.

At that time because of his involvement on the SPCA online forum, an Australian radio station asked the petitioner to appear on a programme and he gave a 30 minute interview for 'Dads on the Air' which was recorded and can also be heard on YouTube.

Subsequently Michael E. Lamb, a professor of psychology at the University of Cambridge a student of Ainsworth who has studied attachment to mothers and fathers, as well as the role of children in the legal system, also produced a highly critical article on Dr McIntosh as Guest Editor with the title, 'A wasted opportunity to engage with the literature on the implications of attachment research for family court professionals'. The abstract went on to state,

The Special Issue edited by McIntosh provided a misleadingly narrow view of attachment theory and of previous attempts to explore the implications of that theory and related research for family court professionals. For example, the editor chose to interview professionals whose opinions seemed likely to accord with hers, and when they dissented, she failed to explore the implications. She thus represented Bowlby’s notion of monotropy as though it was an established and accepted fact; neither the research (which shows the idea to be incorrect) nor Bowlby’s own later disavowal of the idea were addressed, although the implications are profound. More generally, the extensive relevant scholarship was ignored and unrepresented, leaving the unchallenged focus on the editor’s own research and on opinions that accord with her own. As a result, the Special Issue became a platform for opinion, rather than a forum for critical examination of the literature.

This article was followed very recently by an even more forthright description of the work of Dr McIntosh from Professor Linda Nielsen of Wake Forest University, NC, USA, called, 'Woozles: Their role in custody law reform, parenting plans, and family court' (2014) published by the American Psychological Association.

Woozling is the term used by Professor Nielsen to compare the research by Dr McIntosh with the machinations described in the children’s story 'Winnie the Pooh' (Milne, 1926).

The abstract for this article states,

In the international debates on custody law reform and in individual custody decisions in families and in courts worldwide, social science research is often misused and abused. In this article I describe the process by which data can become distorted in ways that steer policy makers, family court personnel, and parents off course in regard to child custody decisions.

In the article Professor Neilsen mentions the UK government consultation on Shared Parenting legislation and connects the work of Dr McIntosh with the statements made by Professor Trinder to the Norgrove Report already cited in this petition;

Likewise, in the United Kingdom the study has played a role in current debates over custody reform. The committee that was assigned to make custody reform recommendations to the British Parliament (Norgrove, 2011) cited only three of the 28 studies that had compared outcomes for shared parenting children and for other children with separated parents. The pre-schooler study was one of the three (Rhoades, 2011).

The committee recommended that Parliament not consider shared parenting legislation: 'Drawing on international and other evidence we oppose legislation to encourage shared parenting. The detailed information from Australia showed the damaging consequences for many children' (p. 138). Trinder, who was well acquainted with the pre-schooler study because she had hosted McIntosh’s 2011 seminar in London, (McIntosh, 2011e), also provided a consultation response to the committee, stating her approval of their decision and claiming it was consistent with the research (Norgrove, 2011, p. 138).

Even more recently in a letter to the Prime Minister, the directors of eight counselling and advocacy centers voiced their opposition to shared parenting legislation, all citing the preschooler study without citing any of the other 28 studies (CYPFD, 2012). This is not to say the preschooler study was the pivotal factor in these policy recommendations.

But because it was cited in all of these documents to the exclusion of almost all of the other studies that have examined outcomes for children in shared parenting families, it serves as yet another example of the extent to which the preschooler study was being presented internationally to policy makers.

In sum, as is characteristic of woozles, the findings from the preschooler study seem to have grown larger and to have become more significant with the passage of time, while its limitations seem to have all but disappeared from view.

Baroness Hale

Baroness Hale DBE, QC, PC, FBA (Hon), who is regarded as an 'architect' of the Children Act 1989, stated in a judgment in the petitioner's own proceedings in 2003,

The father has a point of view which he wishes to advocate. The judge 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.

The father points out that he has a certain amount of pride, so I make that comment in response. He also argues that his views are not politically motivated, but they arise because of his qualifications and experience as a teacher with a professional interest in child development, child psychology and the welfare of children.

This judgment reflects the purpose and direction of the United Nations Convention on the Rights of the Child as expressed in UK private family law. Once again the petitioner would ask the Committee on the Rights of the Child to note that this view of private family law was overwhelmingly endorsed by the UK public, so much so, that the government decided to launch a consultation process to decide the best way to include Shared Parenting legislation in the Children & Families Act 2014.

Baroness Butler-Sloss

However Baroness Butler-Sloss is no less guilty than Dr McIntosh for using her power, sitting in the House of Lords, as Professor Lamb described to adopt a misleadingly narrow view of attachment theory and of previous attempts to explore the implications of that theory and related research for family court professionals.

Baroness Butler-Sloss may believe that as a former President of the Family Division the Tender Years doctrine represents best practice and that research evidence provided by charities such as the Nuffield Foundation support her own view of private family law. But there are no grounds to support her view and as Professor Neilsen states in reality the Baroness is abusing research to steer policy makers, family court personnel, and parents 'off course' in regard to child custody decisions.

In effect the consortium of charities which Baroness Butler-Sloss heads is using her status as a former President of the Family Division to promote a feminist agenda and override the rights of children.

Conclusion

Together with violating the child's right to contact with parents post separation the UK government says that the new Child Maintenance Service will use HM Revenue & Customs data to process applications and make payments more quickly than the old Child Support Agency.

Unlike other jurisdictions around the world that are embracing Shared Parenting legislation the new system used by the Child Maintenance Service will take private family law back to the 1950's by making it easier to treat fathers as 'breadwinners' in the same way as the new Children & Families Act 2014 will encourage mothers to look after their children.

According to the Family Justice Review Interim Report (2011) the number of applications to court has increased steadily in recent years. In 2006 there were over 111,000 children involved in applications for private law orders. In 2009 this had increased to over 137,000.

If the government was ever sincere in listening to the voice of the UK public on Shared Parenting legislation and genuinely cared about the welfare of children it should not be deflected from the reforms of private family law, as originally set out in the Children & Families Act 2014, by the 'woozling' of a retired judge sitting in the House of Lords.

The petitioner respectfully asks the Committee on the Rights of the Child to hear this petition so that it can join too, with the UK public, in seeking to influence the government to have a change of heart because the welfare of children is paramount

Kingsley Miller, May 2014

ADDENDUM

Kingsley Miller MSc Cert Ed

Introduction

The 'child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding'.

It is with respect the petitioner puts this addendum to his petition before the Committee on the Rights of the Child because it includes a transcript of a recent interview given by Baroness Butler-Sloss justifying her reasons for amending the Children & Families Act 2014.

The UK government Fifth Periodic Report

The UK government Fifth Periodic Report to the UN Committee on the Rights of the Child states (Chapter IV: Family Environment and Alternative Care);

Family Law

13. The Children and Families Act 2014 includes new measures in England and Wales to ensure the needs of children remain at the centre of the family law system. Attendance at a Mediation, Information and Assessment Meeting (MIAM) will be a requirement (with exemptions) for adults applying to court in certain types of family proceedings, with the aim of encouraging parents to reach agreement between themselves (out of court) wherever possible. When cases do go to court, the introduction of a new ‘child arrangements order’ will help to ensure that the main focus is on the needs and interests of the child.

But this statement is misleading. The new MIAM requirement only applies to the applicant in family proceedings, usually the father, with the judge now acting as a 'gatekeeper' deciding whether the parent has satisfied this statutory obligation.

Certainly 'child arrangement orders' have replaced 'contact' and 'residence' orders but the House of Lords amendment makes clear that a parent's 'involvement' post separation now can be either 'direct' or 'indirect'. Therefore once a father has satisfied the judge that he has completed the mediation stage of the court process he has no guarantee of seeing his child or children. Although these changes seem reasonable they are a violation of Article 2, 'States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status'.

The former President of the Family Division

In the interview the former President of the Family Division states, 'My view is that no parent has the right to anything', seemingly oblivious to the violation of the child's 'right' to direct contact post separation as set out in Article 9.

Similarly Baroness Butler-Sloss does not seem to realise that the 'Tender Years' doctrine is also a violation of Article 2 which also protects children 'against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members'. Instead Baroness Butler-Sloss states,

Baroness Butler-Sloss states that mothers should not be penalised until the child is 'over 5 or goes to a child minder' with no reference to the father.

Again throughout the interview there is almost a matter-of-fact assumption by Baroness Butler-Sloss that the mother is always the primary carer and therefore the resident parent.

But the terms 'resident' and 'non-resident', were never intended to be synonyms for 'mother' and 'father'. They were deliberately chosen in response to progress in Child Development to recognise that it is the sensitivity not the gender of the parent that is significant to the upbringing of children.

The attitude of the Baroness to private family law is a product of the 1950's and not 'child-centred'.

Cooperative parenting following family separation

The petitioner also puts before the Committee on the Rights of the Child the UK government report called 'Cooperative parenting following family separation: proposed legislation on the involvement of parents in a child’s life. Summary of consultation responses and the Government’s response' in which respondents were asked to consider the potential of four different approaches to promote post-separation shared parenting, and sought views on the impact of this legislation. It is stated,

The Government believes, however, that more can and should be done to ensure that children are able to maintain a relationship with both of their parents following family separation, when disputes arise about children’s care arrangements. We made clear our intention to amend the Children Act 1989 to place an explicit requirement on courts to consider the benefits of a child having a continuing relationship with both parents, alongside the other factors affecting their welfare. Such legislation will send a clear signal to separated parents that courts will take account of the principle that both should continue to be actively involved in their children’s lives where appropriate. In doing so, it will help to dispel the perception that there is an in-built legal bias towards one parent.

After taking careful consideration of the responses from the UK public it is the understanding of a single retired judge who shows a woeful disregard for the Convention on the Rights of the Child that will determine future private family law.

Conclusion

The petitioner holds that it is a fundamental truth that the 'child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding' and for this reason again respectfully asks that this petition should be heard by the United Nations Committee on the Rights of the Child.

Kingsley Miller, June 2014

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