Trends in Family law, divorce and access to justice – Prof Parkinson

Family laws and access to justice

 By Patrick Parkinson

Professor of Law, University of Sydney, Australia; Immediate Past President, International Society of Family Law.

 Paper for UN Experts Group, New York      May 2015



The purpose of this paper is to provide a brief overview of some trends in family life and family law internationally, with a focus on North America, Europe and Australasia. As a shorthand, this will be referred to as ‘the western world’. These countries share a common legal tradition which has its origins in Roman, Greek and Judaeo-Christian thought.

This overview of trends then leads to some consideration of how family law systems can cope with the pressures that various demographic and social changes are creating.

The focus on countries with legal systems rooted in the western legal tradition necessarily offers only a very partial picture of family law internationally. Family law systems are profoundly influenced by religious and cultural factors, and so differences around the world are only to be expected. For example, family law in Islamic majority countries typically reflects Muslim traditions, values and religious precepts. Some countries allow adherents of different faiths or cultural backgrounds to have their own personal laws which govern their family life. This is so in India, Malaysia, and South Africa for example.

The trends identified in this paper concerning the western world are by no means universal; but at least some trends are evident in certain other parts of the world also. The decline in the importance of marriage is as much a feature of South American nations as of the post-Christian nations of Northern Europe; and divorce rates are beginning to climb significantly in some Asian countries such as Singapore.

Marriage, divorce and custody laws

In the last thirty-five years, profound changes have occurred in family law all around the western world, particularly in relation to parenting after separation.1 This may be seen in comparing the current situation with the model on which divorce reform was predicated in the late 1960s and early 1970s.


  • 1 These international trends are reviewed in Patrick Parkinson, Family Law and the Indissolubility of Parenthood (Cambridge UP, New York, 2011).

A). Divorce as the dissolution of the family

The no-fault divorce model of that period was built upon a consensus that dead marriages should be given a decent burial and that it should be possible for the parties to get on with their lives and start afresh once decisions had been made about financial matters and custody. In the divorce law at that time, issues about property and custody were dealt with by a once-for-all process of allocation. If the parties could not reach their own agreement, then the court allocated the property. The court also allocated the children.2 Typically, the courts would award “custody” to one parent, usually the mother, and grant “access” or “visitation” to the other. There was little difference in this respect between common law countries and the civil law countries of Western Europe. “Custody” included virtually all the rights and powers that an adult needed to bring up a child, including the right to make decisions about a child’s education and religion.3

Custody law was thus binary in character. The assumption that was universally held at that time was that custody decisions involved a definitive choice between one home and another.

In this traditional conceptualization of what was involved in custody decision-making, visitation (or “access”) was simply a “legal concession to the loser.”4 Once this allocation had occurred, then people could get on with their lives with the past behind them and with only residual ties to their former spouses. Those ties were through child support obligations—which were poorly enforced—spousal maintenance where ordered, and ongoing access time with the children. The consequence of this view of custody decision-making was that divorce involved a clean break in terms of parental responsibility.

In a perceptive article written in 1986, Irène Théry, the French sociologist, characterized the original divorce reform model as the substitution model of post-divorce parenting.5 Under the substitute family model, the parents’ legal divorce necessarily required a divorce between them not only as partners but also as parents. Only one of the two parents could continue in that role after the divorce, and the other’s role would be no more than a visiting one in most cases. It followed that the marriage breakdown marked the dissolution of the nuclear family. 6 Parental authority was awarded to the sole custodial parent and there was a strong differentiation between the role of the custodial and non-custodial parent.


  • 2 Andrew I. Schepard, Children, Courts and Custody (2004), at 3–4.
  • 3 See, e.g. Lerner v. Superior Court of San Mateo Cnty, 242 P. 2d 321, 323 (Cal. 1952).
  • 4 Lynne Halem, Divorce Reform: Changing Legal And Social Perspectives 213–14 (1980).
  • 5 Irène Théry, ‘‘The Interest of the Child’ and the Regulation of the Post-Divorce Family’, (1986) 14 Int’l. J. Soc. L. 34.
  • 6 Braiman v. Braiman, 378 N.E.2d 1019, 1022 (N.Y. 1978) (“Divorce dissolves the family as well as the marriage”).

B).  The emergence of the enduring family

It was not long after the first flush of the divorce revolution that this idea of post-separation parenting began to change. Théry argued, in her 1986 article, that the substitution model of the post-separation family was gradually being displaced and that a new concept of post-separation parenting was emerging. This, she called the idea of the “enduring family”. In this conceptualization, divorce is a “transition between the original family unit and the re-organisation of the family which remains a unit, but a bipolar one.”7 She noted that this conceptualization of post-separation parenting implies the refusal of a choice between parents in favour of joint parental authority.


  • 7 Théry, supra note 5, at 356.
  • 8 Marygold S. Melli, ‘Whatever Happened to Divorce?’, [2000] Wis. L. Rev. 637, 638; see also Bren Neale & Carol Smart, ‘In Whose Best Interests? Theorising Family Life Following Parental Separation or Divorce’, in Undercurrents Of Divorce 33, 35–37 (Shelley Day Sclater & Christine Piper eds., 1999).
  • 9 Andrew Schepard, ‘The Evolving Judicial Role in Child Custody Disputes: From Fault Finder to Conflict Manager to Differential Case Management’, (2000) 22 University of Arkansas at Little Rock Law Review 395.

Change has occurred only very gradually in family law around the western world, but the relentless march of progress has been in the direction that Théry anticipated. A major theme in the history of family law reform in the last 40 years in Europe, North America and in other common law jurisdictions such as Australia and New Zealand has been the abandonment of the assumption that divorce could dissolve the family as well as the marriage when there are children. As Emeritus Prof. Margo Melli has written: “Today, divorce is not the end of a relationship but a restructuring of a continuing relationship.”8 Marriage may be freely dissoluble, but parenthood is not.

C).  The transformation in custody law

Reforms began in a relatively mild and largely semantic way with the shift in the USA in particular from the notion of sole custody to joint legal custody.9 In Europe, the law reform process took a different form. Rather than making joint custody (in the sense of joint legal responsibility) an option, or even establishing a presumption in favour of this, many European countries made joint parental responsibility the default position in the absence of a court order to the contrary.

This was the position in England and Wales, for example, following the implementation of the Children Act 1989. Both parents retained parental responsibility after divorce, and the decision about what used to be called ‘custody’ and ‘access’ became, not a decision about the allocation of a bundle of rights, but about such practical issues as where the child would live and how much time he or she would spend with the other parent. When a child is living primarily with one parent, that diminishes the non-resident parent’s rights, powers, and responsibilities in a practical sense, to the extent that those rights, powers and responsibilities depend on the child living physically with that parent, but they are in all other respects unaffected by the parental separation. The philosophy of the Children Act 1989 is that parental responsibility continues after separation as it existed before the relationship breakdown, subject to any orders to the contrary by the Court.10


  • 10 Carol Smart, ‘Wishful Thinking and Harmful Tinkering? Sociological Reflections on Family Policy’, (1997) 26 J. Soc. Policy 301, 315. Minor changes were made to the Children Act by the Children and Families Act 2014 which have further strengthened the idea that ordinarily, both parents ought to be able to remain involved in their children’s lives following separation.
  • 11 Frédéric Vauvillé, ‘Du Principe de Coparentalité’, (2002) 209 Les Petites Affiches 4; Hugues Fulchiron, ‘L’ Autorité Parentale Renovée’, (2002) Répertoire Du Notariat Defrénois 959.
  • 12 Föräldrabalken [FB] [Code Relating to Parents, Guardians, and Children] (Swed.) .
  • 13 Custody of Children and Rights of Access Act 1983 (Lag angående vårdnad av barn och umgängesrätt 8.4 1983/361).
  • 14 Kirsti Kurki-Suonio, ‘Joint Custody as an Interpretation of the Best Interest of the Child in a Critical and Comparative Perspective’, (2000) 14 Int’l J. L. Pol’y & Fam. 183, 188.
  • 15 For Denmark, see the Custody and Access Act 1995, Lov nr 387 af 14 juni 1995 om foroeldremyndighed og samvoer. For Norway, see the Children and Parents Act 1981, Lov 1981-04-08 nr. 7 om barn og foreldre.
  • 16 This legislation came into force on July 1, 1998. The provisions on parental responsibility are found in Book 4, chapter 5 of the BGB.
  • 17 Bürgerliches Gesetbuch [BGB] [Civil Code] § 1626 (Ger.). This article provides that the declaration needs to be publicly recorded, either before the Youth Welfare Department (Jugendamt) or a notary, subpara (d)(I). Id.

In different ways, similar ideas came into the law throughout much of Europe within a decade. In France, for example, the law of parenting after separation was based upon the principle of coparentalité from 1993. 11 A common legislative approach which has had the effect of encouraging joint custody has been one of non-intervention. Instead of allocating custody as one of the matters to be dealt with in granting a divorce, joint custody is deemed to continue after separation unless one parent seeks a court order to the contrary. This was how joint custody became the norm in Sweden12 and Finland13 from the early 1980s onwards,14 and is now the position in the other Scandinavian countries as well.15 A similar approach was adopted in Germany by the Gesetz zur Reform des Kindschaftrechtes, 1997,16 which amended the Civil Code to provide that the parents have joint parental responsibility during the marriage and unmarried parents may agree to joint parental responsibility by formal declaration.17

This joint responsibility continues after separation unless the court orders otherwise on the application of one of the parties.18


  • 18 Bürgerliches Gesetbuch [BGB] [Civil Code] § 1671. The applicant may seek that only part of the parental responsibility be conferred on them alone. Id. The change from joint parental responsibility to sole parental responsibility must be in the best interest of the child. Id.
  • 19 Family Law Reform Act 1995.
  • 20 Other aspects of the 2006 reforms are explained below at pp. 7-8.

Australia adopted similar reforms to England in 1995.19 The language of ‘custody’ was replaced with the language of residence and contact orders, and parental separation or divorce did not, of itself, result in any changes to parental responsibility except to the extent that the court so ordered. The position evolved further with the 2006 amendments to the Act. Now courts may make orders concerning with whom the child will live and how much time the other parent will spend with the child.20

The demise of the concept of sole custody was, however, only the beginning of the transition that has occurred in the law of parenting after separation in countries which share the western legal tradition. Increasingly, legislation around the western world is emphasising the importance of both parents being involved in children’s lives. Whereas previously there had been a choice between the mother and the father as the custodial parent, now a spectrum of choices is on offer to the courts. In most cases, there will still be a primary custodian, a parent with whom the child lives for the majority of the time. However, the significance of that allocation to one parent or the other is not as great as it once was. Contact, visitation or access, howsoever it is described, is no longer the order a parent receives as a consolation if he or she loses the prize of custody. Fathers, in particular, are no longer to be marginalised by post-separation parenting arrangements. Rather, the assumption is that the time that the secondary parent has with the child will be such as to allow him or her a meaningful, continuing involvement in the life of the child.

With the changes in legislative language about custody has come a profound change also in the nature of the question that courts are asked to decide in custody disputes. This new approach towards post-separation parenting would have seemed radical to the family lawyers of previous generations, who assumed that divorce required a clear differentiation between the rights of the custodial and non-custodial parent. The consequence of this major shift in the focus of family law is that the promise of freedom to begin afresh that was held out as the meaning of divorce in the divorce reform movements of the late 1960s and 1970s has proved to be somewhat empty where children are involved.

D).  Encouraging the involvement of both parents

The demise of the concept of sole custody was, however, only the beginning of the transition that has occurred in the law of parenting after separation. Whereas under the old substitution 6 model of custody decision-making, the choice was typically a binary one—a choice between the mother and the father as the custodial parent—now a spectrum of choices is on offer to the courts. In most cases, there will still be a primary custodian, a parent with whom the child lives for the majority of the time. However, the significance of that allocation to one parent or the other is not as great as it once was. The question has changed from being about which parent the child will live with to being about how the child’s time will be shared between the parents. One way that involvement of non-resident parents has been supported has been by giving content to the notion of the “best interests of the child” by legislative findings or directions, or the statement of principles. An example of such a legislative direction is in the law in Missouri:21

To paraphrase: “The general assembly of the UN finds and declares that it is the public policy of this state that frequent, continuing and meaningful contact with both parents after the parents have separated or dissolved their marriage is in the best interest of the child, except for cases where the court specifically finds that such contact is not in the best interest of the child . . . etc., etc. ”  The formula of “frequent, continuing and meaningful contact” has echoes in the laws of a number of other jurisdictions in the United States, and is a recurring theme in statements of objects and principles.22


  • 21 Mo. Ann. Stat. §452.375.
  • 22 See, e.g., Cal. Fam. Code § 3020.
  • 23 Loi 2002-305, relative à l’autorité parentale [Parental Authority Act, 2002], available at
  • 24 This was implicit in the text, since the principle of a primary or usual residence was maintained, but explicit in the legislative debates: Hugues Fulchiron, in L’autorité Parentale Renovée, Répertoire du Notariat Defrénois 959 (2002).

In most jurisdictions, legislatures have resisted the temptation to be too prescriptive about what time allocation between the parents will promote meaningful involvement. Courts have retained the flexibility to try to discern what will be in the best interests of the child in each case. Nonetheless, a common thread in legislation across America, and in other parts of the western world, has been towards the encouragement of shared parenting after divorce. A number of jurisdictions now have legislation which gives some encouragement to consider shared parenting arrangements, and the trend in terms of law reform is strongly in that direction in situations where there are no issues of violence or abuse.

France offers one example. The principle of “coparentalité,” established in 1993, was strengthened by legislation enacted in 2002.23 In particular, this legislation made clear that alternating residence (where the child spends an approximately equal amount of time with each parent) is an option. The background to this reform is that while amendments made in 1993 established the principle of joint parental authority after separation, the legislature, at that time, rejected the idea of alternating residence.24 However, some judges were persuaded to fix a primary residence, while allowing contact with the non-resident parent so extensive that the arrangements were equivalent, in practice, to an alternating residence system.25

Two commissions were established to advise the Government concerning possible reforms to the law of parental authority in the 1990s. One took a sociological view, under the presidency of Irène Théry.26 The other focused more on legal issues under the presidency of Françoise Dekeuwer-Défossez.27 The consequence of their proposals for reform, and subsequent governmental consideration, was legislation on parental authority passed in 2002. Article 373-2-9 of the Civil Code now provides that the residence of a child may be fixed alternately at the domicile of each of the parents or at the domicile of one of them. The listing of alternating residence first, before sole residence, was intended to indicate encouragement of this option.


  • 25 See Hugues Fulchiron & Adeline Gouttenoire-Cornut, ‘Réformes Législatives et Permanence des Pratiques: à Propos de la Généralisation de L’exercice en Commun de L’autorité Parentale par la Loi du 8 Janvier 1993’, [1997] Recueil Dalloz Chroniques 363 and the cases cited therein.
  • 26 Irène Théry, Couple, Filiation et Parenté Aujourd’hui: Le Droit Face aux Mutations de la Famille et de la Vie Privée (1998).
  • 27 Françoise Dekeuwer-Défossez, Rénover le Droit de la Famille: Propositions pour un Droit Adapté aux Réalités et aux Aspirations de Notre Temps (1999).
  • 28 The Act of 18 July 2006 is entitled “Loi tendant à privilégier l’hébergement égalitaire de l’enfant dont les parents sont séparés et réglementant l’exécution forcée en matière d’hébergement d’enfant.” (“Law tending to favour equal residency for children of separated parents and regulating enforcement in child residency matters”).

In Belgium, the law was amended in 2006 to provide encouragement for alternating residence. Indeed that emphasis was expressed in the title of the legislation.28 The law provides that when parents are in dispute about residency, the court is required to examine “as a matter of priority”, the possibility of ordering equal residency if one of the parents requests it to do so. The proviso is that if the court considers that equal residency is not the most appropriate arrangement, it may decide to order unequal residency.

This is not the same as saying that there is a presumption in favour of equal time. An equal time arrangement is not presumed to be in the best interests of the child; nonetheless, according to Belgian law, it is the first option that ought to be considered when parents cannot agree on the arrangements.

The 2006 legislation in Australia reflected these international trends. One of the objectives of the Family Law Act, as amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006, is to ensure that “children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.” This is importantly balanced by another object of the legislation, the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence which may necessitate restraints on contact by one parent. 8

Although this was not always understood by the general public, the emphasis on the meaningful involvement of both parents in the absence of violence or abuse does not translate into a presumption of shared care, and still less, equal time. The most that the legislation imposes by way of presumed outcome is a presumption in favour of equal shared parental responsibility. While equal shared parental responsibility says nothing, per se, about how time is allocated between parents—because the circumstances of separated families are so varied—there is at least strong encouragement in the legislation to consider shared care, and to do so positively. First of all, the court has a duty to consider whether an equal time arrangement is in the best interests of the child and reasonably practicable. If equal time is not appropriate, then the court must consider what is termed “substantial and significant time”.29

Amendments to the Act in 2011 modify this emphasis only a little. The requirement to consider equal time and substantial and significant time remains, but in the evaluation of what arrangements are in the best interests of the child, greater weight is to be given to the need to protect children from harm than to the benefit to the child of a meaningful relationship with both parents.30

This revolution in thinking about parenting after separation is also reflected in New Zealand’s Care of Children Act 2004, which emphasises the importance of children’s continuing relationships after parental separation not only in the nuclear family but beyond it.31


  • 29 This is defined as time that the child spends with the parent which includes both days that fall on weekends and holidays; and days that do not fall on weekends or holidays, and which allows the parent to be involved in the child’s daily routine: Family Law Act 1975 s.65DAA.
  • 30 Family Law Act 1975 s.60CC(2A).
  • 31 See further, Bill Atkin, ‘Landmark Family Legislation’ in Andrew Bainham (ed), The International Survey of Family Law 2006 Edition (Jordan Publishing Ltd, Bristol, 2006) 305.

The principles relevant to children’s welfare and best interests (s.5) include the ideal that “there should be continuity in arrangements for the child’s care, development, and upbringing, and the child’s relationships with his or her family, family group, whānau, hapu, or iwi, should be stable and ongoing (in particular, the child should have continuing relationships with both of his or her parents)”. Furthermore, “relationships between the child and members of his or her family, family group, whānau, hapu, or iwi should be preserved and strengthened, and those members should be encouraged to participate in the child’s care, development, and upbringing”. This is a radically different understanding of divorce from its meaning 40 years ago.

Rights of women & gender equality

In many parts of the world, promoting the rights of women in family life remains a key human rights objective because family law systems are structurally patriarchal – that is, women are subordinated to men in terms of rights both as partners and parents. Typically, the subordination of women in the family reflects their subordination in the wider society.

English folklore has it that “the hand which rocks the cradle rules the world”; but in reality, in countries of the western legal tradition as well as elsewhere, these have in the past been two quite distinct roles and were assigned to different genders. Women were seen as the custodians of the hearth, and the notion that they could, or should, also play a role in public life was a quite alien one. While the western legal tradition emphasised the importance of the individual, the individuality of women and children was often hidden within the family unit, headed by the husband and father. The family was regarded largely as a private domain free from the law’s intrusion, while the law reinforced male headship of the domestic unit.32

While structural patriarchy has been all but eliminated from the law in countries which derive their heritage from the Judaeo-Christian tradition, cultural patriarchy remains an issue, and finds its most negative outworking in terms of coercive and controlling domestic violence.33 Dealing appropriately with the issue of domestic violence is one of the major challenges for countries, whatever their cultural history. The balance between an emphasis upon the continuing role of both parents, and the protection of women and children from family violence, has been at the heart of debates about shared parenting laws.34

To find solutions to the issues arising from violence in family relationships, it is first necessary to have an accurate understanding of the problem. There has been a very strong tendency in the past, to define domestic violence in a homogenous way as being perpetrated mainly or entirely by men, and characterised by a desire to control and oppress women. Undoubtedly, some male violence is characterised by desire for patriarchal domination, and is sometimes accompanied by other forms of abuse such as sexual abuse, verbal abuse, financial abuse and social isolation which together have the effect of subjugating and controlling women. Nonetheless, the statistics on the prevalence of violence, and the extent to which men report assaults upon them (albeit that the violence tends to be less serious) do not sit comfortably with such a one-size-fits-all characterization.35 Domestic violence cannot be understood only in terms of male control or patriarchal attitudes.


  • 32 Katherine O’Donovan, Sexual Divisions in the Law (Weidenfeld and Nicolson, London, 1985).
  • 33 Mary Ann Dutton & Lisa Goodman, ‘Coercion in Intimate Partner Violence: Toward a New Conceptualization’ (2005) 52 Sex Roles 743; Evan Stark, Coercive Control: How Men Entrap Women in Personal Life (2007).
  • 34 See Patrick Parkinson, ‘The Payoffs and Pitfalls of Laws that Encourage Shared Parenting: Lessons from the Australian Experience’ (2014) 37 Dalhousie Law Journal 301.
  • 35 The research evidence from general population studies make it clear that both women and men engage in physically aggressive altercations in intimate relationships. In a meta-analysis of 82 studies, it was found that women were slightly more aggressive than men. John Archer, ‘Sex Differences in Aggression Between Heterosexual Partners: A Meta-analytic Review’, (2000) (2000) 126 Psychol. Bull. 651. While many of these studies rely on use of the Conflict Tactics Scale (Murray Straus, ‘Measuring Intrafamily Conflict and Violence: The Conflict Tactics (CT) Scales’, (1979) 41 J. Marriage & Fam. 75), the same patterns are discerned using other measures. This research has proven highly controversial for those committed to a single causal factor theory of domestic violence centred in patriarchy and male control. For a discussion of this topic, see Murray Straus, ‘Future Research on Gender Symmetry in Physical Assaults on Partners’, (2006) 12 Violence Against Women 1086. A single causal factor theory of domestic violence also does not take account of the perspectives of women from positions of difference, including indigenous women and lesbians. See Rosemary Hunter, ‘Narratives of Domestic Violence’, (2006) 28 Syd. L. Rev. 733, 744–49.

Even still, male violence remains the most serious issue from a public health perspective. Work on the typologies of family violence has begun to bridge the gulf between different perspectives, 36 leading to more nuanced and sophisticated assessments of how a history of violence should be considered relevant to post-separation parenting arrangements.37

Rights of children

There has been near universal acceptance of the UN Convention on the Rights of the Child. Article 12(1) of the Convention provides that States should “assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.” Article 12(2) specifically concerns court proceedings. It provides that the “child shall in particular be provided an opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly or through a representative or an appropriate body.” This has been identified as one of four general principles which underpin the more specific rights provided by the Convention.38


  • 36 Michael Johnson, ‘Patriarchal Terrorism and Common Couple Violence: Two Forms of Violence Against Women’ (1995) 57 Journal of Marriage & Family 283; Michael Johnson, ‘Conflict and Control: Gender Symmetry and Asymmetry in Domestic Violence’ (2006) 12 Violence Against Women 1003.
  • 37 Peter Jaffe, Janet Johnston, Claire Crooks & Nicholas Bala, “Custody Disputes Involving Allegations of Domestic Violence: The Need for Differentiated Approaches to Parenting Plans” (2008) 46 Fam. Ct. Rev. 500; Joan Kelly & Michael Johnson, ‘Differentiation Among Types of Intimate Partner Violence: Research Update and Implications for Interventions’, (2008) 46 Fam. Ct. Rev. 476; Nancy Ver Steegh, ‘Differentiating Types of Domestic Violence: Implications for Child Custody’, (2005) 65 Louisiana. L. Rev. 1379.
  • 38 Ursula Kilkelly, ‘Operationalising Children’s Rights: Lessons from Research’ (2006) 1 Journal of Children’s Services 35 at 40-41.

 Article 12 does not specify how it is that children’s voices should be heard in proceedings that affect them. It does not dictate that children should give evidence, nor that they be separately represented – although those are possible ways in which Article 12 may be given effect. There is nothing inconsistent with Article 12 that the child’s voice should be heard through an appropriate social science trained professional, preparing a report for the Court. Nonetheless, Article 12 has acted as a stimulus to evaluate practices in those jurisdictions that have not hitherto given proper voice to children in parenting disputes as a matter of routine procedure. It has also acted as a rallying cry for children’s rights advocates who have been promoting children’s participation in various fori in any event, and who have been able to use this provision of international law to build a bridge to the lawmakers, judges and policy experts.

The focus on children’s participation rights in recent years is a consequence not only of the UN Convention but also a result of a distinct shift over the last few decades in thinking about children in both psychology and sociology.39 Children are no longer seen as the passive recipients of parental influence, the targets of socialization within and outside the family nor as ‘objects of concern’40 in relation to outside intervention. They are now seen as social actors who are shaping their own lives, and influencing the lives of those around them, particularly their parents and siblings.

In Europe, the issue of children’s participation has been given further momentum by the European Convention on the Exercise of Children’s Rights (ECECR).41 This Convention applies to family proceedings, and in particular to those proceedings involving the exercise of parental responsibilities such as residence and access to children. Article 3 of this Convention provides that a child of sufficient understanding shall be granted the right to receive all relevant information, to be consulted, to express his or her views and to be informed of the possible consequences of compliance with these views and the possible consequences of any decision.42 Article 4 provides that the child shall have the right to apply for a special representative where internal law precludes the holders of parental responsibilities from representing the child as a result of a conflict of interest with the latter. Article 5 requires Parties to the Convention to “consider granting” children additional procedural rights including the right to apply to be assisted by an appropriate person of their choice in order to help them express their views; the right to apply themselves, or through other persons or bodies, for the appointment of a separate representative, in appropriate cases a lawyer; the right to appoint their own representative; and the right to exercise some or all of the rights of parties to such proceedings. Other provisions of the Convention concern the roles of judges and separate representatives for children.

This has been operationalised in the domestic laws of numerous European countries. In France, for example, legislation was passed in 2007 which gives children the right to be heard by the judge if they so choose.43


  • 39 Jeanette Lawrence, ‘The Developing Child and the Law’ in G Monahan and L Young (eds), Children and the Law in Australia (Lexis Nexis, 2008) p. 83.
  • 40 Carol Smart, Amanda Wade and Bren Neale, ‘Objects of Concern’? – Children and Divorce’ (1999) 11 Child and Family Law Quarterly 365.
  • 41 ETS 160. The Convention was made at Strasbourg on 25.1.1996. It is in force in 20 jurisdictions.
  • 42 Caroline Sawyer, ‘One Step Forward, Two Steps Back – The European Convention on the Exercise of Children’s Rights’ (1999) 11 Child and Family Law Quarterly 151 argues that rather than being a step forward towards implementation of Article 12, the ECECR back-pedals on Article 12 because the rights are only secured to those who are considered by internal law to have sufficient understanding. This could be set at a very high age. See also Jane Fortin, Children’s Rights and the Developing Law (Lexis-Nexis, 2003; 2nd ed) pp. 200-202.
  • 43 Loi n° 2007-293 of 5 March 2007.

This is intended to be the normal way in which a child will be heard, with an interview by another professional such as a child psychologist being utilised only if it is in the best interests of the child to be heard this way. The judge must also examine whether a refusal by the child to be heard is well founded.44

Family law jurisdictions in other parts of the world are also now exploring how children’s voices can better be heard in the legal process.45 In Australia, a variety of approaches have been trialled.46 In particular, there has been great interest in the practice of child-inclusive mediation, in which the views of the children, interviewed separately, are fed back to the parents.47 In an evaluation of a pilot project, McIntosh and colleagues showed that child inclusive mediation has greater benefits for parents and children than mediation in which the children’s voices were not heard.48 However, the cohort in that study were of a higher educational level than in the general population. Child inclusive mediation is in its infancy still in Australia and further research is needed on how well it works when operationalised in the resource-constrained environment of publicly subsidised mediation services and across the population. A small qualitative study of child-inclusive mediation in New South Wales has produced less encouraging findings than in the McIntosh et al pilot study.49


  • 44 Article 388-1 of the Civil Code now provides following these amendments: “In all proceedings relating to him, a minor capable of discernment may, without prejudice to the provisions as to his intervention or consent, be heard by the judge or, where his welfare requires, by the person appointed by the judge for that purpose.
  • This hearing is by way of right where the minor so requests. Where the minor refuses to be heard, the judge must determine whether such refusal is well founded. He may be heard alone, with a lawyer or a person of his choice. Where that choice does not appear to be consonant with the welfare of the child, the judge may appoint another person.”
  • 45 There are a number of such provisions in European law. For an overview, see Andrew Moylan, ‘Children’s Participation in Proceedings- The View from Europe’ in Mathew Thorpe Justine Cadbury, and Elizabeth Butler-Sloss (eds), Hearing the Children pp. 171-185 (Family Law, 2004).
  • 46 Lawrie Moloney and Jenn McIntosh, ‘Child-Responsive Practices in Australian Family Law: Past Problems and Future Directions’ (2004) 10 Journal of Family Studies 71; Diana Bryant, ‘The Role of the Family Court in Promoting Child-Centred Practice’ (2006) 20 Australian Journal of Family Law 127.
  • 47 Jenn McIntosh, ‘Child-Inclusive Divorce Mediation: Report on a Qualitative Research Study’ (2000) 18 Mediation Quarterly 55; Anthony Grimes and Jenn McIntosh, ‘Emerging Practice in Child-Inclusive Divorce Mediation’ (2004) 10 Journal of Family Studies 113.
  • 48 Jenn McIntosh, and Caroline Long, Children Beyond Dispute: A Prospective Study Of Outcomes from Child Focused and Child Inclusive Post-Separation Family Dispute Resolution (Final Report to the Attorney-General’s Department, 2006). Jenn McIntosh, Yvonne Wells, Bruce Smyth, and Caroline Long, ‘Child-Focused and Child-Inclusive Divorce Mediation: Comparative Outcomes from a Prospective Study of Postseparation Adjustment’ (2008) 46 Family Court Review 105; Jenn McIntosh, Caroline Long and Yvonne Wells, Children Beyond Dispute. A four year follow up study of outcomes from Child Focused and Child Inclusive Post-separation Family Dispute Resolution (Report to the Australian Government Attorney General’s Department, Canberra, 2009).
  • 49 Felicity Bell, Judy Cashmore, Patrick Parkinson, and Judi Single, ‘Outcomes of child-inclusive mediation’, (2013) 27 International Journal of Law, Policy and the Family 116.

Rights and obligations in non-marital cohabitation

One of the most difficult issues that governments around the world have had to consider is whether and how to recognise non-marital cohabitation. In some countries of Western Europe, marriage and cohabitation have now become almost interchangeable in terms of socially accepted forms of family formation.50 In some South American countries, more people of child-bearing age are living in cohabiting relationships than are married.51  In Peru for example, in 2012, 38% of all adults between the ages of 18 and 49 were living in cohabiting relationships; only 24% were married. In Columbia in 2009-10, the rates were 35% cohabiting and 20 percent married.52

Marriage remains the most common form of couple relationship within Western Europe, but the gap between marriage and cohabitation as a family form is narrowing. For example figures from 2006 show that in France, 26% of adults in the 18 to 49 age range were cohabiting, while 39% were married. In Sweden, 25% were cohabiting and 37 percent were married.53

If the growth in cohabitation were confined to childless couples it would not represent a major transformation in family life. Cohabitation could be seen then as a form of trial marriage or precursor to marriage. However increasingly, cohabitation is a context for childrearing. This can be seen in the increase in ex-nuptial births. In Britain, 47.5% of all births occurred outside of marriage in 2012.54 Half or more of all births are ex-nuptial in Belgium, Bulgaria, Estonia, France, Iceland, Slovenia, Norway, and Sweden. The highest rate is in Iceland at 65% of all births.55 More than half of these births across Europe are in cohabiting unions, although there are significant variations between countries.56

Rates of ex-nuptial births are particularly high in certain South American countries. According to one comparative study, 84% of births in Columbia occur outside marriage. In Peru, it is 76%, Nicaragua, 72% and in Brazil, 66%.57 Some cohabiting couples who have children will go on to marry (as the capstone to their committed relationship rather than the foundation stone); but many see no need to do so.


  • 50 Kathleen Kiernan, ‘The Rise of Cohabitation and Childbearing Outside Marriage in Western Europe’ (2001) 15 Int J Law Policy Family 1; Anne Barlow, Simon Duncan, Grace James & Alison Park, Cohabitation, Marriage and the Law: Social Change and Legal Reform in the 21st Century (Hart, 2005).
  • 51 World Family Map, 2014: Mapping Family Change and Child Wellbeing Outcomes (ChildTrends, Washington DC, p.15, at
  • 52 Ibid.
  • 53 Ibid.
  • 54 Office of National Statistics, Births in England and Wales, 2012, (2013).
  • 55 Carl Haub, ‘Rising Trend of Births Outside Marriage’, Population Reference Bureau (2013) at
  • 56 Ibid.
  • 57 World Family Map, 2014, above n.51 at 19.

These demographic changes create challenges for many jurisdictions because marriage has traditionally provided the structural framework for the family law system. Marital property and spousal maintenance rights are premised upon marriage, and remedies become available upon separation and divorce. Spousal maintenance, while it has more than one rationale, has traditionally been conceived as a remedy available to an innocent party in the event of a divorce for fault. Typically the guilty husband was held to his promise of lifelong support for his wife, a promise which was given effect through lifelong maintenance.

Cohabiting couples make no such promises of lifelong support to each other, and moving in with someone does not create the same kind of legal commitment as standing before a religious or civil celebrant and taking solemn vows in the presence of witnesses. Nor is there, in cohabitation, necessarily any justification for treating property acquired in the course of the parties’ cohabitation as shared, in the way that we understand marriage to be a socio-economic partnership.

Typically, jurisdictions have responded in three ways to this conundrum. The first is to adopt an assimilationist approach in which informal heterosexual and same-sex relationships are treated as equivalent to marriage after a certain time. This is the position, for example, in Australia and New Zealand. In Australia, with one or two minor exceptions, there are essentially no differences between marriage and informal cohabitation in any area of law, once the parties have lived together for more than two years or have a child. That means that the property and maintenance consequences of marriage apply to both heterosexual and same-sex cohabiting relationships.

The second approach is to allow people to register their partnerships without getting married. In the Netherlands for example, marriage is open to both heterosexual and homosexual couples, and registered partnerships have almost the same effects as marriages. They provide an option for both heterosexual and homosexual couples as well.58 The consequence of choosing neither to marry nor to register one’s partnership is that the relationship does not attract marriage-like consequences.

The third approach is to recognise cohabiting relationships for some purposes but to leave property rights on the breakdown of the relationship to the general law. Recognition of cohabiting relationships has long been a feature of social security law in many jurisdictions, for example. Governments have taken the view, understandably, that a person should not be able to claim unemployment or sickness benefits without taking account of the income of a cohabiting partner, just as would be the case if the couple were married. To do otherwise is to impose a marriage penalty. Such jurisdictions have ad hoc recognition for cohabiting relationships across a range of other areas of law, but stop well short of full assimilation.


  • 58 Wendy Schrama, ‘Reforms in Dutch Family Law During the Course of 2001: Increased Pluriformity and Complexity,’ in International Survey of Family Law 2002, 277 (Andrew Baiham ed., 2002); Family Law Legislation of the Netherlands (Ian Sumner & Hans Warendorf eds., 2003).

Family instability

One of the greatest problems for family law systems is the growth in the numbers of children whose parents live apart. This is not obvious from divorce statistics, because in many jurisdictions divorce rates are either stable or falling, in part due to the decline in the popularity of marriage. However, as more and more couples have children in the context of non-marital cohabitation, the divorce statistics become less and less relevant as a marker of relationship breakdown.

People cohabit outside marriage for a range of different reasons. Some people live together with the intention of getting married.59 Others may enter a cohabiting relationship with a hope or intention on the part of at least one of them,60 that they will marry, but the relationship does not survive long enough for this to occur. Others reject the idea of formal marriage entirely,61 but see themselves as being in a committed and ongoing relationship.62

Whatever the reason for entering into a cohabiting relationship, the evidence from many parts of the world is that cohabiting relationships which do not result in marriage break down at a very much faster rate than do marriages.63 This is not particularly surprising as regards childless couples, for the nature of much non-marital cohabitation is that either it is an intimate relationship for the time being, or a stage on the way to making a decision about marriage. Yet the pattern of instability persists even when there are children.


  • 59 The Australian Bureau of Statistics reported that 42% of those in a de facto marriage in 2006-07, stated that they expected to enter into a registered marriage with their current partner: Australian Bureau of Statistics, Family Characteristics and Transitions, Australia, 2006-07 (26 May 2011).
  • 60 On gender differences concerning cohabitation with a view to eventual marriage, see Penelope Huang, Pamela Smock, Wendy Manning, & Cara Bergstrom-Lynch, ‘He Says, She Says: Gender and Cohabitation’, (2011) 32 J. Fam. Issues 876; Sharon Sassier & James McNally, ‘Cohabiting Couples’ Economic Circumstances and Union Transitions: A Re-Examination Using Multiple Imputation Techniques’, (2003) 32 Social Science Research 553; Susan Brown, ‘Union Transitions among Cohabiters: The Significance of Relationship Assessment and Expectations’, (2000) 62 J. Marriage & Fam. 833.
  • 61 For Australian evidence, see Sandra Buchler, Janeen Baxter, Michelle Haynes, & Mark Western, ‘The Social and Demographic Characteristics of Cohabiters in Australia: Towards a Typology of Cohabiting Couples’, (2009) Fam. Matters no 82, 22.
  • 62 On the different meanings of commitment, see Jan Pryor & Josie Roberts, ‘What is Commitment? How Married and Cohabiting Parents Talk About Their Relationships’, (2005) Family Matters No 71, 24. Australian research indicates that people who are cohabiting but intend to marry (either as a first or subsequent marriage) are significantly less likely to separate compared to those who cohabit without having marriage plans. Sandra Buchler, Michelle Haynes, Janeen Baxter, & Mark Western, ‘Cohabitation Outcomes: The Effect of Fertility Intentions, Relationship Satisfaction and Union Length on Cohabitation Transitions’, Paper given at the HILDA Survey Research Conference, Melbourne, 14 (2009).
  • 63 Renata Forste, ‘Prelude to Marriage or Alternative to Marriage? A Social Demographic Look at Cohabitation in the U.S.’, (2002) 4 J. L. & Fam. Stud. 91; Helen Glezer, ‘Cohabitation and Marriage Relationships in the 1990s’, (1997) Fam. Matters no 47, 5; Steve Nock, ‘A Comparison of Marriages and Cohabiting Relationships’, (1995) 16 J. Fam. Issues 53. In a study of 11 European countries, Kiernan found that cohabiting relationships which did not result in marriage were much more fragile than marriages either preceded by a period of cohabitation or without a prior period of cohabitation. In Britain, only 18% of such relationships survived for ten years. The levels of stability of cohabitation were higher in other countries, but in no country other than East Germany did the majority of cohabiting partnerships survive for ten years: Kathleen Kiernan, ‘Cohabitation in Western Europe’, 96 Population Trends 25 (1999).

Findings from the Millennium Cohort Study in Britain, initially comprising a cohort of more than 18,500 mothers who gave birth during 2000 or 2001, indicate that children born to cohabiting parents were almost three times as likely as those born to married parents to be no longer living with both these parents by the time they were 5 years old.64 In an Australian study, the odds of a cohabiting couple with children breaking up was more than seven times as high as a married couple who had not lived together before marriage, and more than four times as high as those who had lived together but went on to marry.65

Data from the Fragile Families study in the US (a major study of a cohort of unmarried and married mothers in 20 large cities66) found that parental separation by the time the child was 3 was five times greater for children born to cohabiting than married parents. Differences in financial wellbeing and family characteristics between cohabiting and married parents explained this to some extent, but after controlling for race, ethnicity, education, economic factors, family characteristics and an extensive set of other covariates, parents who were cohabiting at their child’s birth still had over two and a half times the risk of separating as compared with parents who were married at their child’s birth.67

Increasingly, children are born outside of cohabiting relationships entirely. For example in Ireland, 35% of all births are outside marriage. Of these, nearly half (45%) are to single mothers without the other parent in the home, that is nearly 16% of all births.68 The figure is the same in Britain.69 In the USA, between 2006 and 2010, 24% of first births were to women who were neither married nor cohabiting.70 From a family law perspective, these are children about whom there could be a parenting dispute from the day they are born.

Figures from Australia based upon population surveys provide clear evidence of the increase in family instability over time. The following Table charts the increase in the percentage of children born within certain years who experienced their parents living apart by the age of 15. Nearly three times as many children born in 1981-85 had experienced their parents’ separation by that age as had been the case for the cohort born after World War Two.

 Australia: likelihood of Living in Lone Mother Families (aka SMH)
Birth cohort By age 15 At birth Due to parental separation
1946 – 55 8.9 2.6 6.3
1956 – 62 11.0 3.2 7.8
1963 – 75 18.0 3.0 15.0
1976 – 80 22.2 3.8 18.4
1981 – 85 24.9 6.5 18.4
  Source: D de Vaus and M Gray, ‘The Changing Living Arrangements of Children, 1946-2001’ (2004) 10 Journal of Family Studies 9.


  • 64 Kathleen Kiernan & Fiona Mensah, ‘Unmarried Parenthood, Family Trajectories, Parent and Child Well Being’ in Children of the 21st Century: From birth to age 5, p. 77 (K. Hansen, H. Joshi, S. Dex, eds, 2010) (28 per cent of cohabitees had broken up compared with 10 per cent of married couples). See also Ann Berrington, ‘Entry into Parenthood and the Outcome of Cohabiting Partnerships in Britain’, (2001) 63 J. Marriage & Fam. 80 (26% of all cohabiting partnerships dissolved within 5 years, 16% continued and 59% resulted in marriage. For women, the presence of children born within the partnership had no effect on either the probability that the couple marry or the rate of separation, compared to women without children, although for men, the birth of a child had a stabilizing effect on the partnership); Kathleen Kiernan, ‘Childbearing Outside Marriage in Western Europe’, (1999) 98 Population Trends 11, tbl 11 (probability of relationship surviving 3 and 5 years after birth of first child among women aged 20-45 lower for cohabiting relationships than marriage in 9 countries studied).
  • 65 Peter Butterworth, Tamar Oz, Bryan Rodgers, & Helen Berry, ‘Factors Associated with Relationship Dissolution of Australian Families with Children’, Social Policy Research Paper No 37, 22 and 29, tbl 9 (2008).
  • 66 The term ‘fragile-families’ refers to families in which the parents are unmarried at the time of the child’s birth, in order to ‘underscore that they are families and that they are at greater risk of breaking up and living in poverty than more traditional families.’ (The Fragile Families and Child Wellbeing Study, About Fragile Families at
  • 67 Cynthia Osborne, Wendy Manning, & Pamela Smock, ‘Married and Cohabiting Parents’ Relationship Stability: A Focus on Race and Ethnicity’, (2007) 69 J. Marriage & Fam. 1345.

Data published earlier this year indicates how much family stability has deteriorated even since the 1980s. By the time that children in the latest study are 15-17 years old, 40% have parents living apart, up from 25% in the first half of the 1980s.71 The proportion of all adults in the population whose parents had divorced or separated before they turned 18 increased from 15% in 2006-07 to 18% in 2012-13. Across the population, that is a substantial increase in just 6 years.72

About 13% were born into single mother households in 2005, double the rate in the first half of the 1980s.73

It is quite likely that the position is the same in other nations across Europe, North America and South America which have seen similar dramatic rises in ex-nuptial births over the last two decades. As the ex-nuptial birth-rate continues to climb, it is reasonable to expect that the percentage of children who experience their parents’ separation before the age of 18 will keep climbing also, even if the divorce rate remains stable.

Pressures on the courts

Inevitably, a certain proportion of children whose parents live apart will have disputes which result in one parent filing court proceedings. Courts in many countries are overwhelmed by the number of cases that come before them. This is reflected in the available data on increases in litigation in a number of countries. In the United States, an indication of the increase in custody disputes can be seen in the data of the National Center for State Courts. Evidence from seven states indicates a 44% increase in custody filings between 1997 and 2006.74 In the same period, divorces had decreased nationally by 3%. There had previously been a 43% increase in custody filings nationally between 1988 and 1995.75 In Australia, the number of contact applications nearly doubled between 1994 and 2000,76 although this upward trend was evident long before 1995.77


  • 71 ABS 4442.0 – Family Characteristics and Transitions, Australia, 2012-13 (released February 2015).
  • 72 Ibid.
  • 73 Paula Laws, Samanthi Abeywardana, Jane Walker and Elizabeth Sullivan, Australia’s mothers and babies 2005, National Perinatal Statistics No. 20, Australian Institute of Health and Welfare, Canberra, 2007.
  • 74 Nat’l Center for State Courts, Examining the Work of State Courts 29 (2007).
  • 75 Brian Ostrom & Neal Kauder, Examining the Work of State Courts, 1995: A National Perspective From the Court Statistics Project (1996); J. Pearson, ‘A Forum for Every Fuss: The Growth of Court Services and ADR Treatments for Family Law Cases in the United States’, in Cross Currents: Family Law and Policy in the US and England 513 (Sanford Katz, John Eekelaar & Mavis Maclean eds., 2000). See also Andrew I. Schepard, Children, Courts and Custody 38–40 (2004).
  • 76 In 1994-95, there were 14,144 applications in the Family Court of Australia. In 1999–2000, there were 27,307. Family Court of Australia Statistics 1999/00 Table 4.10. No figures are available after 2000 because of changes to the court system.
  • 77 As a result of a transfer of powers from state governments to the Federal Government in 1987, the Family Court gained jurisdiction over custody and access disputes involving ex-nuptial children. In 1988–89, the first full year in which this expanded jurisdiction existed, there were 10,619 contact applications in the Family Court of Australia. In 1993–94, there were 16,256. Family Court of Australia Statistics 1989/90 Table 5 1999/00 Table 4.10. Indeed, the rise in the level of contact applications can be seen ever since 1981. In that year there were 4214 applications, and by 1986 it had risen to 7208. Family Court of Australia Statistics 1989/90 Table 5.

In England and Wales, contact (visitation) orders increased more than fourfold between 1992 and 2008.78 Nor are these increases confined to English-speaking countries. In France, new applications in relation to parenting and visitation arrangements following separation and divorce increased by 25% between 1996 and 2001.79 In Denmark, the total number of visitation applications nearly doubled between 1995 and 2000.80 After that time, the numbers remained relatively stable, even falling in 2006 to 10,184 cases. However in 2008 the numbers rose sharply again, to 13,412. This followed the enactment of the Danish Act on Parental Responsibility with effect from October 1, 2007.81


  • 78 In 1992, there were 17,470 contact orders. In 2008, there were 76,759. This Table is derived from the statistics published annually by the Ministry of Justice and its predecessor departments. See e.g. Ministry of Justice, Judicial and Court Statistics 2008, ch 5; Lord Chancellor’s Dep’t, Judicial Statistics 1986–2000. See also Gwynn Davis & Julia Pearce, Privatising the Family?, [1998] 28 Family Law 614. For discussion of the explanations for this rise in litigation, see Gwynn Davis, ‘Love in a Cold Climate — Disputes about Children in the Aftermath of Parental Separation’, in Family Law: Essays for the New Millenium 127, 128-29 (Stephen Cretney ed., 2000).
  • 79 Dep’t of Justice, France, Annuaire Statistique de la Justice, 1996–2000 and 1997–2001. The increase in applications in relation to children born to unmarried parents was even greater. They rose from 42,005 in 1996 to 62,201 in 2001. By 2006 the figure was 78,986, almost a 100% increase within ten years: Dep’t of Justice, France, Annuaire Statistique de la Justice, Édition 2008, p.49.
  • 80 CivilRetsDirektoratet, Samvær Børnesagkyndig Rådgivning Konfliktmægling, Statistik 2001 (2002). 6,384 in 1995, 11,560 in 2000. In Denmark, any parent may apply for contact. It used to be the case that contact rights would only arise if the parents had lived together for most of the first year of the child’s life, usually at least 8 months in practice. This restriction was removed in 1995.
  • 81 Personal communication from Mariam Khalil, Danish Department of Family Affairs, by email 15th December 2009.

These massive increases in litigation about parenting after separation have passed largely unnoticed even in the few jurisdictions that publish statistics, but their effects are certainly noticed in the courts. Family lawyers and judges in many countries bemoan the long delays in bringing the disputes that cannot be settled, to trial. Consequently, the call is for more resources; more judges, more courtrooms, more legal aid for poorer citizens to be able to litigate their claims. Children’s advocates call for more lawyers to represent children.

Yet there is another feature of family law systems in these countries that might be observed: the call for more resources is increasingly falling on deaf ears. Indeed at a time when the demand for resources is ever more intense, governments are cutting, rather than increasing supply. This is so, for example, in England and Wales which has seen massive cuts to legal aid for family law cases, in Australia, where retiring judges are not being replaced, and in New Zealand which has seen significant reductions in resources for its family law system. A Family Justice Working Group in Canada made this observation in 2013:82

Despite the pervasiveness of family justice problems, the general public, media and politicians are far more engaged with criminal law matters. This heightened interest fuels criminal law reform efforts and often translates into funding support for criminal justice as a priority over family law.

Three directions for reform may assist in reducing the pressures on the courts. 83


  • 82 Family Justice Working Group (2013). Final Report of the Family Justice Working Group of the Action Committee on Access to Justice in Civil and Family Matters, Meaningful Change for Family Justice: Beyond Wise Words, p.3. Toronto: Canadian Forum on Civil Justice.
  • 83 See further Patrick Parkinson, ‘The Challenge of Affordable Family Law’ in M Brinig ed, Selections from the Recife Congress p. 189 (ISFL, 2015), available at

a) Rethinking the role of mediation

The first is to see parenting disputes at least, is first and foremost a relationship problem which requires therapeutic intervention, and only secondarily as a legal problem. That is, the first port of call in family law disputes involving children should not be lawyers, for the reality is that talk of rights in the context of parenting disputes is an inadequate discourse for the resolution of conflicts about children. Most lawyers will admit, if pressed, that there is relatively little law involved in determining parenting disputes about children, and talk of rights (other than children’s rights) is problematic. Certainly, there may be significant factual issues to be resolved in cases where the safety of parents or children would be significantly at risk unless protective court orders are made. Lawyers also pride themselves on their capacity for prediction: they are the keepers of the wisdom of “what the courts will do” if the matter is adjudicated, although in reality such confidence in knowing the minds of the judges is often misplaced.

Seeing parenting disputes as first and foremost a relationship problem obviously leads to exploration of the option of mediation as one way to resolve the dispute. However, it is not enough, to reduce the congestion in the courts, to encourage parties to go to mediation, as for example is the new strategy in England and Wales. It is important to develop a community understanding of alternative pathways to lawyers and courts in resolving family law disputes. This can be illustrated by recent research in the UK on Mediation Information and Assessment Meetings (MIAMs).84 The researchers reported that before the cuts to legal aid, solicitors referred the clients they believed could benefit from mediation, and those who needed to attend as a prerequisite to obtain legal aid funding for court representation, to MIAMs. After the legal aid cuts, mediators reported a substantial fall in the number of solicitor referrals to MIAMs, which they attributed to solicitors’ loss of incentive to refer publicly funded clients. It is important therefore to create alternative pathways to people to get the help they need if the known pathway – through lawyers – is no longer available to the same extent.

This requires a fundamental rethinking of the structural place of mediation within the family justice system. Mediation for families after separation developed first as an alternative to litigation. 85 However, because mediation is typically court-ordered and often court-annexed, the model still places lawyers and the courts at the centre of the process of dispute resolution about post-separation parenting, with pathways to settlement being created to divert people off the litigation pathway. Forty years on from the beginnings of the divorce revolution, this still remains the dominant paradigm for dispute resolution in family law in many parts of the western world.


  • 84 Anna Bloch, Rosie McLeod & Ben Toombs, Mediation Information and Assessment Meetings (MIAMs) and mediation in private family law disputes: Qualitative research findings (London: Ministry of Justice, 2014).
  • 85 On the development of family mediation in North America, see Connie Beck & Bruce Sales, ‘A Critical Reappraisal of Divorce Mediation Research and Policy’, (2000) 6 Psychology, Public Policy and the Law 989.

What is needed is to create different pathways for parents who have separated, with litigation being just one of those pathways.86  The creation of alternatives to the pathway of lawyers and courts in resolving disputes about children is however, not an easy one. It requires a new way of thinking about what it means to make decisions in the best interests of children and about the kinds of services that families need in the aftermath of parental separation.

This is the journey on which Australia has now embarked. In that country, there is now a coordinated approach led and funded by government, which has brought about a revolution in service provision to support families after separation. One of the key concepts is the availability of free, or heavily subsidised mediation in highly visible and accessible centres, known as Family Relationship Centres, located, for the most part, in the main business districts of urban and regional communities. Whereas the move in the United States has been in the direction of more in-court therapeutic services, with the court at the centre of a problem-solving team,87 in Australia, the move has been away from the courts into community-based services which are nonetheless systemically integrated with the family law system in a cohesive framework for service provision to families after separation.

The Family Relationship Centres (FRCs) emerged as a strategy for reform of the family law system in Australia in the mid-2000s following major debates about the future of that system.88 There are now 65 Centres all over the country, approximately one for every 300,000 of the population, in all the major population centres and regions. The first of them opened in July 2006.

FRCs are an early intervention initiative to help parents work out post-separation parenting arrangements in the aftermath of separation, managing the transition from parenting together to parenting apart. They are there to help resolve disputes not only in the aftermath of separation, but also in relation to ongoing conflicts and difficulties as circumstances change. The FRCs do not only have a role in helping parents after separation. They are not ‘divorce shops’. They are meant also to play a role in strengthening intact relationships by offering an accessible source for information and referral on relationship and parenting issues, and providing a gateway to other government and non-government services to support families. The FRC cannot possibly provide all the services that people need; but it is designed as a gateway to those services.


  • 86 In Australia, see Family Law Pathways Advisory Group, Out Of The Maze: Pathways To The Future For Families Experiencing Separation (2001).
  • 87 On American developments in court-annexed services, see e.g. James Bozzomo and Gregory Scolieri, ‘A Survey of Unified Family Courts: An Assessment of Different Jurisdictional Models’, (2004) 42 Family Court Review 12; Richard Boldt and Jana Singer, ‘Juristocracy in the Trenches: Problem-Solving Judges and Therapeutic Jurisprudence in Drug Treatment Courts and Unified Family Courts’, (2006) 65 Maryland Law Review 82.
  • 88 See further, Patrick Parkinson, ‘The Idea of Family Relationship Centres’ (2013) 51 Family Court Review 195.

Most of the work of FRCs is concerned with helping parents who have separated. The FRCs provide an educational, support and counselling role to parents going through separation with the goal of helping parents to understand and focus upon children’s needs, and by giving initial information to them about such matters as child support and welfare benefits. They act as a gateway to a range of post-separation services, such as support programs for separated fathers. The FRCs are thus about organising post-separation parenting, but they are much more than this. They may be the gateway also to services which will help people cope with the emotional consequences of relationship breakdown.

The FRCs are funded by the Government and operate in accordance with guidelines set by the Government. However, they are actually run by non-government organisations with experience in counselling and mediation, selected on a tender basis, and staffed by professional counsellors and mediators. Although actually run by different service providers in different localities, the FRCs have a common identity and logo for the public.

It is a legal requirement to attempt mediation before a case can even be filed, subject to exceptions in relation to allegations of family violence or child abuse. If, following an intake session, the mediator considers that mediation unsuitable for the parties, or if mediation does not resolve the dispute, then the parties will get a certificate allowing them to file in court.

The FRCs achieved measurable success very quickly. There has been a reduction of about 32% in court filings in children’s cases in that five year period.89 In the three years following the introduction of the reforms to the family law system in 2006, the use of counselling and mediation services by parents during and after separation increased from 67% to 73%, while recourse to lawyers diminished to a corresponding degree. Contact with courts dropped from 40% before the reforms to 29% afterwards.90

The significant decline in the number of court applications over the five-year period since the introduction of the Family Relationship Centres shows how a well-organised and funded system of mediation and other family support, away from the court system, can have benefits for the courts. However, it would be a mistake to measure the success of the Family Relationship Centres only in these terms. It is apparent that they are meeting the needs of many people who would not have gone on to court at all, who would have given up, or joined the ranks of the disaffected. Many clients of FRCs would not have gone to court due to their lack of financial resources.91 This shows that the FRCs offer a means of assisting that large body of people who cannot realistically afford private lawyers but who also do not qualify for state-funded legal assistance or feel able to represent themselves in litigation. That is, for one group of people in the community, resources of this kind can provide affordable family law.


  • 89 Patrick Parkinson, ‘The Idea of Family Relationship Centres’ (2013) 51 Family Court Review 195.
  • 90 Rae Kaspiew, Matthew Gray, Ruth Weston, Lawrie Moloney, Kelly Hand, Lixia Qu et al, Evaluation of the 2006 Family Law Reforms 50 (2009).
  • 91 Australian National Audit Office, Implementation of the Family Relationship Centres Initiative. Auditor General Audit Report No 1, 2010-2011) (Canberra: Commonwealth of Australia, 2011), p. 68.

b) Reducing discretion

Mediation can only go so far. The pressures on governments, and the unaffordable costs for so many families, ought to cause some fundamental rethinking about the model of individualised, discretionary court-based family justice in common law countries.

While governments are increasingly encouraging people to settle their own disputes by alternative dispute resolution, and withdrawing legal aid for civil litigation, such efforts are likely to be of limited efficacy if laws remain centripetal. Centripetal laws are laws that have the effect of drawing parties inexorably towards a judicial resolution, rather than conferring upon them the clear bargaining endowments which would facilitate settlements.

Discretion is a particular feature of family law. The argument in favour of conferring broad discretions upon judges is that it gives them the necessary flexibility to tailor the relief awarded to the particular circumstances of each case, rather than being fettered by fixed rules. However, this presupposes that governments are willing to bear the costs of providing access to the courts so that judges are able to achieve fair outcomes in each case. The greater the degree of discretion, the more difficult it is to bargain in the shadow of the law,92 for where there is a broad discretion, the law casts only an uncertain shadow.

Centripetal laws assume that courts will make the decisions, and regulate the conduct and adjudication of cases within the court setting. Centrifugal laws send clear messages to people about their rights, obligations and entitlements, so that judicial resolution of disputes is made necessary only where the facts of the case or the scope of the rule are in dispute.93

Centrifugal laws will usually require general rules or principles which may not be sensitively attuned to all the different circumstances that might arise, but they simplify the messages the law gives, thereby reducing the numbers of disputes and assisting in the resolution of disputes by conferring bargaining chips. They provide a framework within which alternative dispute resolution may operate successfully. An emphasis upon private ordering, combined with the conferral of broad discretions on judges in the few cases which come to courts, is the worst of all worlds.


  • 91 Australian National Audit Office, Implementation of the Family Relationship Centres Initiative. Auditor General Audit Report No 1, 2010-2011) (Canberra: Commonwealth of Australia, 2011), p. 68.
  • 92 Robert Mnookin and Lewis Kornhauser, ‘Bargaining in the Shadow of the Law: the Case of Divorce’, (1979) 88 Yale Law Journal 950.
  • 93 The terminology of centripetal and centrifugal law is derived from Marc Galanter ‘Justice in Many Rooms: Courts, Private Ordering and Indigenous Law’ (1981) 19 J of Legal Pluralism & Unofficial Law 1.

Moving from centripetal to centrifugal laws in family law is not straightforward. It is, perhaps, easiest in child support which is well-suited to fixed formulae and limited discretion. The costs of litigating over child support usually far exceeds the amounts of money at stake. Australia moved, many years ago, to an administrative system for assessing child support, with very limited options for recourse to the courts. Britain has not had a happy experience with administrative mechanisms for calculating and collecting child support, but the overall success of the Australian system shows it is possible if well-designed.

In Canada, some degree of predictability in terms of spousal maintenance has also been achieved through the Spousal Support Advisory Guidelines.94

The division of family property on separation is also an area where there is limited need for discretion. The community property regimes, or deferred equal division systems such as in Germany, are at one end of the spectrum of certainty. Once it is determined whether the property is marital or non-marital, part of the community or separate, the issue of division or allocation is straightforward. That is not to deny the law’s potential for complexity; but complex laws can still be predictable laws. In some cases there may also be significant factual issues that require resolution, but that is true of discretionary regimes as well.

On the other end of the spectrum of certainty are highly discretionary systems such as in England and Wales and Australia. All property is available for distribution, not just marital property. The Court has a broad discretion about how to divide the property, based upon consideration of multiple factors. While the uncertainty may be reduced if there is sophisticated appellate guidance, usually the cases which reach the highest courts involve parties with substantial wealth.95 These cases are atypical. In Australia, the appeal division of the Family Court often stresses that each case turns on its own facts, and so strenuously avoids laying down guidelines for the exercise of discretion that ought to be followed by trial judges, or giving guidance on outcomes.96 That perpetuates the extremely discretionary nature of the jurisdiction.

It is not as straightforward to promote certainty in children’s cases as in financial matters. For the cases that go to trial, the best interests of the child must be the paramount consideration.


  • 94 Carol Rogerson & Rollie Thompson, Spousal Support Advisory Guidelines (Ottawa, Department of Justice Canada, July 2008). See also Carol Rogerson & Rollie Thompson, ‘The Canadian Experiment with Spousal Support Guidelines’, (2011) 45 Fam.L.Q. 241. These guidelines distinguish between cases where the spousal support is in addition to child support (with child support payments being the first priority) and those where the recipient is not also in receipt of child support. They address all the bases for making awards, including non-compensatory spousal support, based upon what judges do in practice.
  • 95 In England and Wales, see e.g. White v White [2001] 1 AC 596; Miller v Miller; McFarlane v. McFarlane [2006] 2 AC 618.
  • 96 See e.g. Bishop & Bishop [2013] FamCAFC 138 at [28]; Bevan & Bevan [2014] FamCAFC 19 at [92].

However, that does not mean that the legislature or courts cannot provide clear signalling to help parties without significant safety concerns to resolve their cases more easily. While some parents will make their own arrangements without reference to legal norms, others can be assisted to develop a well-functioning parenting arrangement if there is enough guidance in the legislation97 supported by opportunities for education and dispute resolution.

Children’s cases cannot be dealt with by rules, but there are general principles that can be articulated in legislation to provide a framework for discussions in mediation and negotiations between lawyers. Examples of general statements of principle that might usefully be included in legislation and which can also be referred to by the courts in deciding contested cases are that children have a right to maintain relationships with parents and other family members who are important to them, unless this is detrimental to their wellbeing; that children have a right to protection from harm; that children who have formed a close relationship with both parents prior to the parents’ separation will ordinarily benefit from having the substantial involvement of both parents in their lives, except when restrictions on contact are needed to protect them from abuse, violence or continuing high conflict; that parenting arrangements for children ought to be appropriate to their age and stage of development; and that parenting arrangements for children should not expose a parent or other family member to an unacceptable risk of family violence.

Beyond these statements of general principle, having an affordable family law system probably means having a series of standardised parenting regimes that can act as a concrete foundation for negotiation between parents. It is likely to be too prescriptive to put this in legislation, but published advisory booklets or sample parenting plans can help provide people with formulae for working out their own parenting arrangements. One way, for example, is by sample court orders that may be adopted by consent. Where the parties have agreed that the non-resident parent will have the children to stay every other weekend, standard clauses could be made available specifying contact arrangements from after school on Friday to the commencement of school on Monday; providing for school holiday contact by stipulating when holidays are deemed to begin and end; dealing with handovers (non-resident parent collects at the beginning of the holiday period and resident parent collects the children at the end of their stay with the other parent); options for Christmas and other important holidays. Lawyers have these templates for agreements readily available in their precedent folders. There is no reason why they should not be made available by a public body for use by parents who are trying to organise arrangements for themselves.

Sample parenting plans could be used also by mediators. There are only so many variations on the theme of parenting after separation; and where the parents are having difficulty agreeing, a rational response might be to get them just to try a suitable standardised package of parenting arrangements for a few months, and then to come back if it is not working well.


  • 97 In the US context, see Margaret Brinig, ‘Substantive Parenting Arrangements: The Tragedy of the Snipe Hunt’ (2013). Notre Dame Legal Studies Paper No. 1321. Available at SSRN:

The issues with infants and very young children are more complex, and not amenable to standardised packages or formulae. Yet even here, experts in the field have been able to offer some guidance. After a huge controversy in recent years concerning the issue of infants and young children staying overnight with non-resident parents,98 a consensus statement has been written reflecting a large body of expert opinion in the field.99 Researchers have put aside some of their differences to provide guidance on when it is contra-indicated for children under 4 to stay overnight with non-resident parents, based upon what is known from child development research.100

Relocation cases are another area where a greater consensus is emerging based upon research findings and the wider body of research knowledge on children’s wellbeing in the aftermath of parental separation. While there remain differences of view among researchers about how best to promote predictability in decision-making on relocation, that argument takes place within the context of much agreement on a range of issues.101

What about shared care? The evidence from much research is that equal time arrangements and other arrangements for substantially shared care can work well, but they are most likely to do so in the lower conflict cases where parents are able to co-operate and compromise, not the most high conflict cases characterised by rigid positions and proprietary notions of parenthood. Legislation can helpfully assist parents to work through the practicalities of shared care by providing a checklist of factors for when such an arrangement is likely to work. In Australia, there is some encouragement for shared care in the law. However, the Australian legislation sought to address the issue of deterring inappropriate shared care arrangements by requiring that a shared care arrangement must be ‘reasonably practicable’ and providing guidance on when that might be so. Judges are required to consider the proximity of the parents’ homes, the capacity of the parents to implement a shared care arrangement, their ability to communicate with one another, and the likely impact of the shared care arrangement on the child.102 This can be used by mediators and lawyers to ‘reality test’ the practicability of a proposed shared parenting arrangement.


  • 98 See for example the Family Court Review special issue of 2011 edited by Jenn McIntosh and the responses published the following year: Michael Lamb, ‘A wasted opportunity to engage with the literature on the implications of attachment research for family court professionals’, (2012) 50 Family Court Review 481; Pamela Ludolph, ‘The Special Issue On Attachment: Overreaching Theory And Data’ (2012) 50 Family Court Review, 486. See also Pamela Ludolph & Milfred Dale, ‘Attachment in child custody: An additive factor, not a determinative one’ (2012) 46 Family Law Quarterly, 1; Linda Nielsen, ‘Woozles: their role in custody law reform, parenting plans and family court’ (2014) Psychology, Public Policy, and Law; Judy Cashmore and Patrick Parkinson,, ‘The Use and Abuse of Social Science Research Evidence in Children’s Cases’ Psychology, Public Policy and Law.
  • 99 Richard Warshak, with the endorsement of 110 researchers and practitioners listed in the Appendix. ‘Social science and parenting plans for young children: A consensus report’. (2014) 20 Psychology, Public Policy, and Law, 46.
  • 100 Marsha Pruett, Jenn McIntosh, & Joan Kelly, ‘Parental separation and overnight care of young children, Part I: Consensus through theoretical and empirical integration’ (2014) 52 Family Court Review 240; Jenn McIntosh, Marsha Pruett, & Joan Kelly, ‘Parental Separation and Overnight Care of Young Children, Part II: Putting theory into practice’ (2014) 52 Family Court Review 256.
  • 101 See Patrick Parkinson and Judy Cashmore, ‘Reforming Relocation Law – An Evidence-based Approach’ (2015) 53 Family Court Review 23; Rollie Thompson, ‘Presumptions, Burdens And Best Interests In Relocation Law’(2015) 53 Family Court Review 40; Patrick Parkinson, & Judy Cashmore, ‘Reforming Relocation Law: A Reply To Prof. Thompson’ (2015) 53 Family Court Review 56.
  • 102 Family Law Act 1975 (Cth) s.65DAA(5).

What must be avoided is having any presumption about time. There are too many variables. Some legislatures have sought to encourage shared care. That might be an optimal arrangement for some families if it can be managed, but the logistics and expense of doing so may mean it is out of the reach of many separated parents. There are many other situations where it is unsuitable, not least if parents live too far apart or there are concerns about the competence of one parent to provide a safe and nurturing environment for the child. There can be no one-size-fits-all policy for post-separation parenting.

c) Simplified procedures

There are useful models in some jurisdictions for simplified processes in some kinds of parenting cases that are cost-effective both for parents and for the government. Where the dispute is essentially about levels of contact and details of the arrangement rather than the issue of who should be primary carer, the dispute ought to be able to be resolved without another full-blown trial in court. A model for quick and inexpensive resolution of contact disputes is the Danish system.

The system for resolving contact (visitation) disputes in Denmark illustrates the possibilities for developing new forms of adjudication other than the traditional adversarial trial that are quick and inexpensive. Contact disputes are an example of where the remedy will only be reasonably effective if it is speedy and affordable. Yet typically, courts in common law jurisdictions adopt the same adversarial processes and legal structures to the resolution of contact disputes as they do for the major allocation decision of custody or primary residence.

In Denmark and Norway, certain functions have traditionally been exercised by the County Governors’ Offices. These are city/county administrative authorities. Their role in relation to family law is a historical one, which dates back hundreds of years to a time when the monarch was able to grant divorces as a matter of executive decision. That continued in Denmark and Norway into the modern age of divorce, so that the courts and the administrative authorities have a parallel jurisdiction in relation to divorce, and certain ancillary matters, e.g. child support.103

In Denmark, the County Governors’ Offices are given a lot of responsibility for resolving disputes and making orders.104 Consensual divorces are almost always handled by the County Governors’ Offices. They also deal with spousal maintenance, child support, contact arrangements and adoption. The courts resolve the major issue of who should have custodial responsibility, but cannot make contact orders. If there is a dispute about contact, it is left to the County Governors’ Offices to deal with.


  • 103 Svend Danielsen, ‘The Scandinavian Approach: Administrative and Judicial Resolutions of Family Conflicts’, in Marie Thérèse Meulders-Klein (ed.), Familles et Justice 139 (1997).
  • 104 The description of the Danish system for resolving contact disputes is derived from the author’s research in Denmark in 2002, and interviews with Prof. Svend Danielsen, a former senior family law judge in Denmark, senior members of the Ministry of Justice, and with a judge of the Sheriff’s Court.

The procedure for initiating the involvement of the County Governor’s Office in a contact problem is simple. If a father is having problems seeing his children, or is otherwise unhappy with the arrangements, he can write to the County Governor’s Office asking for it to get involved. There are no forms to fill in or applications to file and there is no fee payable.

The matter will be dealt with initially by a lawyer in the County Governor’s Office. He or she will contact the mother and seek her response. There will then be a meeting. The couple can be referred to counselling, paid for by the County Governor’s office, or to mediation. It used to be the case that counselling was only offered if both parties were willing to participate. Counselling may now be offered to one party even if the other is not willing to join in.

If the problems cannot be resolved by counselling or informally, then the lawyer in the County Governor’s office will proceed to make a determination. That takes effect as an order, which is enforceable in the courts.105 Normally, matters are resolved within 6 weeks. There is a right of appeal to the Ministry of Justice, Department of Private Law (CivilRetsDirektoratet) in Copenhagen. Normally these are dealt with on the papers, but a parent will never be denied a personal meeting if that is requested.

Another example of innovative practice is the Oregon informal domestic relations trial in Deschutes County, Oregon. This involves a form of trial in which the rules of evidence are excluded and the parties engage directly with the judge. Only the judge asks questions of each person. No testimony from witnesses except from the parties directly, unless special permission is granted by court for expert testimony. The role of lawyers is limited essentially to defining the issues and then presenting closing arguments.

These different ways of adjudicating disputes concerning children that cannot be resolved by mediation or negotiation demonstrate what might be possible in other countries with the support of legislatures.

105 The decisions of County Governors’ Offices are enforceable, and that enforcement occurs through the court system. The Danish have a special enforcement court for all kinds of court orders, including contact orders. It can be translated as either the Bailiff’s Court or the Sheriff’s Court.


This brief overview of developments around the world in countries with a Judaeo-Christian tradition indicates not only the pace of change in families and family law systems but also the challenges that demographic changes in family life pose for governments and courts. To draw an analogy, justice systems built on delivering a few quality products each year are now having to be transformed to provide for a mass market. Those systems were not designed for volume, and they have adapted only slowly and with difficulty to the level of demand now placed upon them to adjudicate disputes. Nor is the task any more to make a once-off decision about ‘custody’. In an age when the expectation is that both parents will ordinarily remain involved in children’s lives despite living apart, parenting orders must be adjusted as circumstances change: by agreement preferably, but if not, by a new adjudication. A certain proportion of family law litigants will keep coming back, unable to sort out any disputes for themselves.

The new challenges require imagination. They also require increased public funding. That itself is a challenge when there are so many other demands for public funding arising from family breakdown.

From a public policy perspective, the decline in acceptance of marriage as a foundation for long-term relationships and child-rearing has been a negative development. The pressures that the rise and rise of non-marital cohabitation and ex-nuptial childbirth have brought will challenge us, if not overwhelm us, for many decades to come.


  1. That States with high levels of family breakdown and births to single mothers actively develop policies and educational strategies to promote safe, stable and nurturing families.
  2. That States recognise the need for economic justice to be available to the primary caregiver of children following the breakdown of non-marital relationships, in addition to the provision of child support.
  3. That States develop community-based alternatives to the pathway of lawyers and courts in resolving disputes about children. These should include the development of highly visible and accessible sources of assistance to parents such as educational programs on parenting after separation and family mediation.
  4. That States reduce the level of judicial discretion in family justice systems in order to promote out of court resolution of disputes.
  5. That States with an adversarial tradition of civil litigation develop judicially managed short trials without the need for legal representation to resolve the disputes of impecunious litigants.





February 27, 2016 at 12:20 am Leave a comment

Friedman: the worldwide evolution of child custody laws

Towards a Structure of Indifference: The Social Origins of Maternal Custody

[ A summary of Debra Friedman’s work ]

Journal of Social History,  Summer, 1996  by Linda W. Rosenzweig

Note: Considering that this article was penned in 1995 it is remarkably penetrating. Friedman identifies what is only now being more widely accepted as the causal factor and stumbling block, namely, that ‘the state’ has now taken over from the father the paternal and guardianship role – the rhetoric cloak of concern, as she puts it, for “the child’s best interest” which enables the state to do whatsoever it pleases. Not only are her  comments prescient but are still relevant to today’s experience. One can only imagine that in it’s year of publication it must have been seen as sheer heresy.


  •  Abstract: In the forty years between 1880 and 1920, the presumption that divorced and separated fathers in normal circumstances should be granted the custody of their children was changed in all Western countries that permitted divorce. New laws where passed that soon gave way to the almost certain award of child custody to mothers. This book, a study of that change in presumption of custody, addresses two fundamental questions. The first, straightforwardly empirical, is: “Why has a shift of that magnitude and importance been lost to the public memory in less than a hundred years ?” The second is more abstract: “Why did the dominant group, the fathers, cede rights to the mothers without duress — indeed, without concerted political or collective action of any kind ?”  Prior attempts to account for the change in custody failed because they underestimated the role played by the state in each instance, and ignored the class character of divorce of the period. Friedman’s own account begins by examining the considerable pressures brought to bear by rapidly rising divorce rates in England, France, and the United States. Maternal custody arose as a by-product of the state’s concerns about the potential for a vastly increased welfare burden imposed by financially dependent women following divorce. During the transition, responsibility for children’s welfare was diffused, with mothers becoming responsible for nurture, fathers for financial support, and states for schooling. Ultimately this led to a structure of indifference, with striking consequences for the welfare of children after divorce. (Published: 31 Dec 1995, 157 pages).
  • [Not unlike the reaction of town halls to burdens placed ‘on the parish’ by widows and orphans in the 18th and 19th century and the need to ‘off-load’ them as promptly as possible – RW.]


Friedman’s analysis of this transition differs from those of other researchers whose work she summarizes. Most studies stress the impact of several concurrent trends – the development of separate spheres, the cult of domesticity, the invention of modern motherhood, and the rise of feminist activism – as causal factors.

Friedman maintains that the evolution of the presumption of maternal custody involved more than the substitution of one parent for the other and more than the conversion of paternal right to maternal right.

Fathers once had complete custody and control over children, but absolute parental rights were now assumed by the state and were exercised in custody disputes through a rhetoric of concern for the child’s best interest. Although that interest was increasingly interpreted to compel maternal custody, the state rather than the mother had effectively acquired the right of parenthood. Yet the displacement of the father as custodial parent did not relieve him of familial financial obligations.

Friedman explains the transformation in custody laws and practice in terms of the influence of “generic social forces that, in their sweep, were little affected by national variations” such as different legal and political traditions. (p. 59) She cites four such trends – the increasing divorce rate, the increased number of children affected by divorce, the increased life expectancy for privileged white women, and the decrease in maternal and neonatal death rates. The cumulative effect of these forces resulted in the creation of a potential welfare burden for the state which provided the impetus for the reconsideration of paternal preference in custody.

The development of maternalist ‘social welfare’ policies, particularly in the United States, addressed the economic plight of widows and their children. However, because those policies excluded divorced women and their offspring, they effectively encouraged maternal presumption in child custody cases.

The climate in other Western nations was generally unsympathetic to the extension of social welfare, and those states were also unwilling to meet the economic needs of the growing numbers of divorced women over a longer life span, as well as those of their offspring from childhood to adulthood. Hence the state’s economic interests favored the privatization of material support for both children and their divorced mothers through the maintenance of fathers’ financial obligations.

Custodial fathers provided only for their children while non-custodial fathers provided for two sets of dependents, mothers and children, a practice that removed a considerable financial burden from the state. At the same time, the state assumed the father’s earlier obligation to educate his children as compulsory public schooling expanded. Friedman suggests that this development eliminated the last impediment to maternal custody because it ensured that children would be educated even though their mothers could not afford to pay for expensive schools.

This study locates the custody question in the context of the more general issue of whether the laws, norms, and institutions surrounding divorce and custody work to the advantage or the detriment of children.

The author refutes the assumption that parents are intrinsically motivated toward altruistic and self-regulated behavior regarding their offspring, asserting that parent-child relations are “socially constructed inequalities” (p. 13) and as such, are subject to alteration and breakdown. When divorce occurs, the interests of parents often diverge from those of their children as well as those of the state.

Concern for children’s welfare has played a negligible role in the issues surrounding divorce legislation generally, as the evolution of the presumption of maternal custody illustrates. The unintended consequence of that evolution has been the creation of a structure of indifference. After a divorce, responsibility for a child’s well-being is diffused among three agents with three separate, often conflicting agendas. The transformation from paternal presumption to maternal presumption does not reflect a failure on the part of custodial fathers, a change in their feelings toward their children, or a revised interpretation of the best interests of the child. It represents a solution to several related social problems, none of which actually responds to the fundamental, enduring needs of children.

Friedman considers the possibility that those needs were better served when paternal custody prevailed and one agent had a definite obligation to provide support, protection, and education. Existing evidence suggests that contemporary custody arrangements generally do not produce beneficial effects for parents or children. The search for alternatives must acknowledge and address the structure of indifference.

Friedman’s approach to the evolution of child custody laws and practice is more sociological than historical. She stresses the impact of impersonal forces and effectively dismisses the role of individual agency, either male or female (with the exception of judges), in the rise of maternal presumption of custody. She also minimizes the possible significance of the changes in women’s lives during a period of major transformations in female roles and opportunities. Her insistence on the role of broad social trends versus national differences occasionally seems over-stated and contradictory, as in the following generalization:

  • “Yet the sense of the period – in the United States, though not so much in France or England – is one in which the welfare obligations toward children and mothers were growing….” (p. 109)

Despite these imperfections, the book contributes a sophisticated, thoughtful analysis of the interaction between the family and the state to the growing body of literature on state and society. Both the subject matter and the argument will interest historians working on issues pertaining to women, childhood, and the family in late-nineteenth- and early-twentieth-century Western settings.




See also:-

Custody;col1 and;col1



August 15, 2014 at 11:08 pm Leave a comment

An end to judicial ‘thuggery’ ?

by  Robert Whiston FRSA

Based on a March 2014 article  in the The Register Citizen (Connecticut), by Andy Thibault


The judiciary as a whole cannot abide being told they are doing a poor job or are falling down in the proper administration of the law. They cannot abide being criticised when the grotesqueness of their failings are as plain as the noses on their faces.

Can you believe, for example, that the official body in England with responsibility for judicial conduct handed out a formal warning to a High Court judge who they deemed ‘outspoken’ in his support of traditional marriage ? [1] Would that have happened even 10 years ago if a judge had spoken out in favour of same-sex marriage ? Of course not. That would have been viewed as quite acceptable and, indeed, it has been legalised this year.

No, the judiciary would rather blame others, or swear black is white rather than admit they have it wrong. So, if these shrinking violets are too sensitive to criticism and find these home truths too intimidating, let us help them to look overseas. To gauge whether “if the same hat fits” elsewhere as it does here in Britain, lets see if the bungling is any worse or the same.

If we look across to the New England state of Connecticut we find a realisation, at last, of the full denial, by the  courts, of rights granted under their Constitution – in much the same way as our courts defeat the intention of Magna Carta and other bills of rights etc, such as UN Conventions.

With Putin’s thugs in the Ukraine aping Hitler’s government-by-thuggery of the 1930s in Czechoslovakia, and North Korea stomping its tiny feet this week in yet another trumped-up paddy (excuse the unintended pun), lets look at how not-very-different-from-them we really are when it comes to some human rights.

The main complaint in the UK is the dread secrecy surrounding anything to do with Family Courts.

  • “The fact is, family courts are like North Korea. In North Korea they can deprive you of your freedom and your wealth without due process. In family court they can also deprive you of your freedom and your wealth without due process.”

Anyone who has been through the family courts knows how accurate this description is. But these aren’t the words of an English legislator – they wouldn’t have the temerity – no, they belong to State Representative Minnie Gonzalez and Edwin Vargas describing their Connecticut family courts regime – and both, coincidentally, are not lawyers.

As they point out, in North Korea citizens are murdered with impunity and while family courts don’t exactly ‘kill you’, they do crush the life out of parents on a regular basis as surely as north Koreans are starved to death. For a great number of parents not being able to see your child is as good as being starved to death.

Broken system

For 20 years the English judiciary has, bit by bit, reluctantly acknowledged that all is not well. Greater progress than ever has been made in the last 12 month with the president of the family division, Lord Justice Munby’s pronouncements, though nothing tangible can be counted to date.[2] ‘Transparency’ is the latest buzz word but is this another case of rhetoric over reason, of time-wasting by window dressing antics rather than solid action ?

How familiar does the following Connecticut assessment sound to English ears ?

  • Aggrieved parents who have not been able to see their children for years put so much heat on the legislature and the judicial branch that even Chief Justice Chase Rogers has acknowledged some sort of reform is needed.

Chase_ConnFor her part, the near 60 year old Chief Justice Chase Rogers prefers to characterise the system as not quite “totally broken” – the obvious inference (which dare not speak its name) is that it is totally broken. As the famous riposte of Mandy Rice-Davies would have it, “He would say that, wouldn’t he.” (see Profumo Scandal, 1963). [3]

Left: Chief Justice Chase Rogers, born Nov 12th 1956.

And how familiar is the following complaint from parents ?

  • Many of these parents trapped in the system have shelled out huge sums – tens and hundreds of thousands of dollars – not only to regular lawyers, but also to court-ordered and unsupervised guardians.

Some reporters are starting to wake up and in the vanguard is Connecticut based Andy Thibault who writes a weekly column for ‘The Register Citizen.’

Carpet baggers

Interesting parallels are drawn in Andy Thibault’s article between probate courts and family courts as both are, in effect, closed off from public scrutiny.

This ground is incredibly fertile for responsible legislators and reporters to uncover which court shafts citizens’ worse – probate or family. Both courts share the shield of doing much of their business out of public view.

In the aftermath of the 2008 banking crisis, financial institutions have continued their disgraceful behaviour by foreclosing on homes they don’t even own. Fraudulent papers have been presented to courts that in turn have not made the requisite enquiries and have rubber-stamped claims to repossess houses.

The inevitability of it all, its sheer momentum, is comparable to Gen. Sherman’s rape of the South and reminiscent of Atlanta’s Burning.

  • “The system is broken … the system is letting these people down … they are losing their houses, they are losing their money,”

No matter that victims of family court have paid hundreds of thousands of dollars to lawyers they have virtually no hope of justice or relief from the onslaught.

Legal Aid has not been available in US custody cases and now it is no longer available in the UK, so we can expect the rise of the litigants in person (LiP). If justice is to be made available to all these comments are prescient: [4]

  • “If the Judicial Branch will not take a step back to allow the flooded legal market to correct itself, perhaps what divorcing families really need is not an attorney, a therapist or mediator, but help from the FBI’s white-collar crime unit.”

Quite apart from divorce and custody issues but definitely linked to family courts is the matter of perjury. Courts almost encourage perjury in the obtaining of restraining orders and ouster / eviction notices. It has been a problem in England and Canada for many years and is clearly a problem in the US.

Perjury is at higher nominal levels because in custody hearings claims, often false, of domestic violence are common. These are made in order to ensure sole mother custody awards. In Sept 2000 the obstacle it caused was highlighted in a submission by Louise Malenfant entitled “Perjury in Family Courts” which asked, “Are we fueling violence ?” [5]

The conclusion is that on both sides of the Atlantic, family courts are in a sorry mess and the chances of obtaining any semblance of justice are slim. Not only is this clinically depressing for combatants but, and perhaps surprisingly, for judges too. More than a few in England have given up family court work altogether as it is too emotionally draining on them. And we have only to look at Mr. Justice Coleridge of the High Court to realise that many more are so dissatisfied (see reference above).




[1] “Judge Sir Paul Coleridge disciplined for stating views on traditional marriage.” Official body with responsibility for judicial conduct hands outspoken High Court judge a formal warning. 17 Dec 2013

[2] “Senior judge orders greater transparency in family court judgments”, Guardian, 16 Jan 2014. , see also

[3] See

[4] ‘Opinion: In Defense Of Self-Represented Litigants’ 27/3/14

[5] Perjury in Family Courts – Alberta Submission to the Unified Family Court Task Force, September 2000 – Are We Fueling Violence ? . Presented by Louise Malenfant Family Advocate of Parents Helping Parents Edmonton, Alberta.



April 1, 2014 at 8:34 pm Leave a comment

Agenda setting

Have you ever been puzzled – even stunned –  by events and why they either happen so rapidly or seem never to reflect the opinion of the general public ? The answer is the insidious power of “Agenda Setting.”  It is an art form and when used skillfully can be devastating.

Let’s not kid ourselves – politics and reasoned debate stand no chance when “the fix is in.” But how does it work ? Stuart Birks, the Director of the Centre for Public Policy Evaluation, Massey University in New Zealand briefly lifted the skirt on this topic during a seminar in 2008.

Regardless of the specific subject (child custody, cohabitation, shared parenting, domestic violence etc),  somewhere, someone’s  ‘agenda’ lies behind it – and social policies seem forever to be the victim.


New Zealand Centre for Political Research  (NZCPR)   

(26 October 2008)

Guest Speaker : Stuart Birks (Massey Uni)

“It would be nice to believe that the current election campaign would consist of well-informed debate on important issues. Ideally, there would be a good airing of the best alternative policies. Politicians, armed with the facts, would debate openly without being tied to agendas, hidden or otherwise. Let’s be honest, though. That is not what is happening. Nevertheless, according to some theories, the world is rational, everyone is logical, and there is no false information!

Rhetoric rules

If we were to go back two hundred years or so, we would find that logic, aiming to prove, and rhetoric, aiming to persuade, were given equal emphasis in education. Persuasion is central to the operation of politics and is actively pursued through the media.

There are large numbers of PR [public relations] people employed in the public sector. Political parties do their own polling to monitor public opinion, and ‘push polling’ is used in some countries to sway respondents. ‘Social marketing’ is growing as a specialist area, with numerous taxpayer-funded social marketing campaigns in New Zealand, especially in the area of health and violence (as with “It’s not OK”,

Numerous theories have developed to describe this activity and to explain its effects. Some writers see politics as competition between groups which are aiming to set the policy agenda, promoting their issues and denying alternatives. Others consider ways in which agenda setting is done, ‘framing’ issues so that people see them from their preferred perspective. Here are three examples of prominent perspectives:

  1. Global warming is happening, and we must reduce carbon emissions.
  2. Maori social problems are a result of colonisation.
  3. Family violence is men’s use of force to control women and children.

The use of language can be important, promoting key words and phrases that trigger desired responses, such as Labour’s use of ‘hollow men’, ‘flip-flops’, ‘slippery’, and ‘trust’. All parties do this, but the Labour Party has drawn attention to the approach through a paper by Curran (details below).

There is a good reason why views can be influenced in these ways. Most policy issues relate to things about which people have little direct experience. Therefore they have to rely on others for their information. In addition, the issues are not ones that they can do something about individually. Owing to their complexity, the number of people affected, or the costs of intervention, co-ordinated action is needed.

Infomation dependency

So people begin by being poorly informed, and they generally have little incentive to put in much effort to become well informed.

Consequently, they rely on readily available information, such as that provided through the media and by politicians in election campaigns. They are in no position to accurately assess the quality of the information, and are likely to accept the commonly accepted views that they hear, including the views of the people around them.

This is what Hardin has called ‘street-level epistemology’. People’s understanding is simply what has been passed on by others, generally with little attempt at verification. This is natural enough. After all, even so-called experts begin by learning what others tell them. However, it does mean that we can be misled.

Language and lexicon

We can speculate by considering the current election in terms of actions by people who subscribe to these theories about framing, use of language, and setting agendas. What if political strategies were chosen as if it were a game of thatnature? Anthony Downs, in his book, ‘An Economic Theory of Democracy’, specified a set of propositions based on rational individuals and only accurate information.

We could present alternative propositions based on agendas and shaping views. I summarise some possible propositions here. They are discussed in more detail in my paper at: There is a key term, ‘traction’, that you will hear in political debate. An issue or idea has traction when sufficient people consider it deserving of attention. It gets media coverage and others respond. There may be enough support to result in a policy response.

Limiting factors

So what are the implications? Only so many issues can be on the agenda. There is a limit to the attention people can give, and news bulletins include only a few stories. Politicians can only consider so much new legislation, and the more they consider, the more superficial the assessment. So there a limited number of issues have traction at any one time. Parties aim to achieve traction on their issues and prevent traction on others, and they are more likely to invest in an issue with traction than to generate traction for a new issue. Perspectives can be narrow, with ‘quick fix’ simple solutions.

If traction is so important, we should be concerned about how it is determined. The media play an important role. They are more suited to some kinds of coverage than others. Image tends to dominate over substance, and there is effective imagery thatcan ‘push buttons’. It is easier to generate traction through celebrity support than through detailed, informed presentation of information. In general, the media are not aiming to change views. Rather, they tend to reinforce the prevailing pattern of issues with traction.  [However, the recent Murdoch/ News of the World scandal of 2012 might re-write that aspect – Ed].

If propositions such as these describe the political scene, there is unlikely to be detailed policy analysis or monitoring, and many problems will only be recognised and addressed when they are too serious to ignore. While it is often said thatwe get the government that we deserve, there are institutional biases thatwork against good, reasoned government. These limit the quality of government that can be expected. It may be possible to moderate their effect, but nevertheless, there is a strong likelihood that politics will be dominated by crises. This might help to explain the sub-prime mortgage crisis that is affecting the whole world.



Birks, S. (2008) An Economic Theory of Democracy Revisited – Downs with Traction Available at SSRN:

Curran, C. (2006). Language matters; Setting agendas – taking charge of the language Paper presented at the Otago/Southland Labour Party regional conference. from

See also

Note: Stuart Birks is the director of the Centre for Public Policy Evaluation at Massey University, Palmerston North. He is an economist with a focus on policy formulation and implementation. 

May 29, 2012 at 1:15 am 1 comment

A Fairer Deal for the Common Man ?

An extract from  Men’s Aid response to the latest Law Commission Report, No.198  ( March 24th 2011).

“The people and the pursuit of happiness” versus “an elite and state-planned misery”

 In Jan 2011 the Law Commission published Report No.198 “MARITAL PROPERTY AGREEMENTS.” The report examined the future of pre-nuptial agreements and whether they have a role to play in the British legal system. Hitherto, pre-nuptial had been illegal and non-binding because they were considered “contrary to public policy.”  The followuing is an excerpt from a response submitted by Men’s Aid  comprising the Executive Summary and Conclusion. Men’s Aid’s full submission wil be made available shortly. The Law Commission’s full report can be acessed at: 

What is ‘contrary to public policy’ ? It might be helpful to begin by explaining this term in Englsih law. For a marraige contract (or any contract) to be valid and not void it must be freely entered into and not be the result of, for example, coersion, blackmail, duress or bribery. These are  “defective formalities.” Prior to Lord Hardwicke’s Marriage Act 1753 there were no formalities (pre-conditions) for a valid marraige. Public policy after 1753 included the requirement of ‘publicity’and free consent so that secret weddings and kidnap weddings would cease to be valid. Over time it has been ruled that an agreement between the parties not to consummate their marriage is void and ‘contrary to public policy’ (see Brodie v Brodie  [1917] P 271). Similarly, polygamy is not valid (see also Postscript at foot of page).

Executive Summary

The vision and the boldness of the Law Commission is to be commended. It is obviously adhering to its 1965 remit of clearing out obsolete and cluttering laws

The preceding decade has seen a variety of high profile celebrity cases where settlements have reached astronomical proportions (millions of pounds) which are quite unrelated to any reasonable want or need of the (usually) female spouse.

Divorce lawyers and the judiciary have realised this unedifying sight is not bringing them any public respect or admiration. It is lawyers and family solicitors who, since about 2007, have been calling for change (‘Overhauling of our divorce laws’, The Times, Oct 5th 2007).

Conventional legal advice was that if you wanted to protect yourself by entering into a pre-nuptial agreement you could do so, but there was no guarantee that your divorcing spouse would be held to it, or that the court wouldn’t set it aside.[1]

The introduction of Marital Property Agreements (MPA) and nuptial agreement would appear to signal the end or at least negate the need for the Matrimonial Causes Act of 1973 (MCA). The raison d’être for the MCA to continue bearing down on, and being enforced against, divorcing couples falls apart.  

In that regard nuptial agreement must represent a step change from Sect 25 of the MCA 1973 (the ‘ancillary relief’ obstacle course).

It is intended that a pre-nuptial contract will override, or usurp, the normal powers of the Family court. The Law Commission refers to them as Marital Property Agreements or MPAs. They have the ability to place a ringfence around named assets and monies which the courts and divorce settlements cannot touch. The scope of this protection could be enormous. It could limit, for instance, the savagery of ancillary relief ‘larceny. It is envisaged that couples could enter into asset/property protective agreements before their wedding (pre-nuptial) and that already married couples would also be free to enter into similar agreements (post-nuptial).

The major question asked in the Report is whether or not ancillary relief should be reformed as a result ? Our answer is ‘yes’ it should and must. We would go further and support the argument for the ousting of courts from the whole process, i.e. adopt marital property agreements for ancillary relief, etc.

Couples are currently constrained to work with the shadow of the law looming over them. This situation would be transformed with the introduction of Marital Property Agreements. Certainty’ would be restored to an area of the law where confusion has reigned for too long.

Marital Property Agreements (more commonly known as ‘pre-nuptial contracts’) are a comparative novelty in the 20th and 21st century but were previously not uncommon, e.g. in the 19th century.

As a consequence there will be a ‘learning curve’ for all concerned (inc. professionals and divorcing couples). Not all the contingencies can be predicted. We must be prepared to make minor alterations and expect to firm-up criteria, not initially but as experience is gained.

We must also be prepared to let go of administering people’s lives in detail (micro-management), which has been the hallmark and mindset of institutions in the late 20th century.

Mediaeval ecclesiastical sources corroborate that it was not uncommon for a wealthy man to agree to settle around one third of his wealth on a former wife. Spousal separation – but by death – gave rise to the dowager’s share as her son inherited the title and estates and was again about 30% of the dead man’s estate or rents in lieu thereof as ‘maintenance’.

This rule of thumb apportionment was used up until the 1960s and was only changed by the MCA 1973 which increased the proportion due a divorced woman to 50% or any reasonable figure above that figure which it was thought was needed to maintain her.

The dowager share was, of course, of little consequence to field hands and the urban poor for over 600 years since 30% of what they possessed amounted to pennies. However, the material affluence of the post 1945 era changed all that.

Pre-nuptial contracts offer the citizen an unprecedented opportunity to seize back control of his and her own destiny. They epitomise free will and the free choice of both parties to form a binding pre or post-nuptial agreement that will apply to them and them alone. It is vital that this free choice smash any fetters from the previous era of centralised administration.

In conjunction with the Consultation Paper’s view, we can envisage Matrimonial Causes Act 1973 especially Sect 25, Sect 34 and Sect 34 becoming obsolete overnight. The ability to control and determine maintenance agreements (MCA, Sect 34), would fall into line with DWP thinking concerning individual couples negotiating levels of child support payments. In the case of the DWP it is heeding the Henshaw Report’s recommendations and in the case of the latter it would be complying with the aspirations of the Law Commission for “autonomy.” (See also XXX).

The Law Commission always refers to  nuptial agreement as “Qualifying Nuptial Agreement” meaning that they must contain certain elements. In our opnion, qualifying nuptial  agreement should not be hamstrung in any way. It will be logical for a qualifying nuptial agreement to contain a range of assets including a marital property agreement and for such agreement to span the post-marital disposition of assets, money and wealth.

Freely entered into contracts should also be capable of determining the level of spousal and children support /maintenance together with qualifying conditions. The content of the agreement can / should also incorporate dissolution provisions.

The point is well made by the Law Commission regarding protecting family companies from the ravages of ancillary relief. They have suffered disproportionately in divorce settlements with some going into liquidation and others being forced heavily into debt.

Some fears have been expressed regarding non-disclosure, accuracy of disclosure, and the waiver of rights to disclosure. However, we feel the Law Commission has dealt comprehensively with these different fears.

The Law Commission points out that the management of disclosure – as already experienced by those practitioners currently engaged in pre-nuptial agreements – closely resembles current negotiations for ancillary relief. This departure into pre-nuptial contracts should, therefore, not impose requirements for a new skill set or represent a new cost disincentive.

The single biggest change will be that pre-nuptial contracts will no longer be of questionable validity in the family courts – as had hitherto been the case. Under ordinary ‘contract law’, the contract freely entered into (MPA) will be binding on both the parties and not (ordinarily) subject to court interference. Where one party is handicapped or disadvantaged in some way, i.e. did not receive legal advice, then again under ordinary ‘contract law’, a binding contract will not have been formed.

Disquiet can be detected and is felt keenest among those of limited income if they each have to seek out their own ‘legal advisor.’ This ‘unnecessary’  (meaning avoidable) cost may well put a brake on the ‘take up’ of nuptial agreements but this is not insurmountable.

We can see the argument for a qualifying time period which could allow parties to reflect and consider their agreement clauses. However, if the Law Commission believes this serves no useful purpose we would acquiesce on the matter.

Allowing nuptial agreements to be set aside or varied as the Law Commission implies on several occasions, defeats the purpose of nuptial agreements and kills off “certainty.” Only in extremis should courts have the power to set aside  or vary clauses. Society and the Law Commission must reject the presumption that life is risk-free. It is not. With or without contracts, risk and hardship occur.

Safeguards should be explicitly defined in any pre-nuptial contract to minimise the need for court intervention, specifically, provisions agreed by the parties for fairness and equality provisions.

Overall, the Law Commission has set out a paper with such eminently sensible proposals that it commands our support.


There is one complication that has not been mentioned so far and which may have severe implications on the how the Consultation Paper turns out. The complication is Elizabeth Cooke (pictured below), who has recently been appointed to the Law Commission. Ominously, she has responsibility for property, family and Trust law ( Formerly of Reading Uni. she has co-authored books with Anne Barlow and Brenda Hoggett (now Baroness Hale). 

In addition, her most notable books carry the titles: 

  • “The Land Registration Act 2002 and the nature of title”
  • “Cohabitants, Common Intention and Contributions”
  • “Community of Property – A Study for England & Wales” by A. Barlow, T Callus and E Cooke (2003)
  • “Land Law” (Oxford UniversityPress, 2006)
  • ‘Community of Property: a regime forEngland & Wales’ (Nuffield Foundation, 2006): research report co-authored with A Barlow and T Callus)

At meeting held atPortcullis House, on March 31st  2009 between MPs and legal professionals ‘community property’  laws of the sort operating in the US were mentioned as an alternative to our present Land Law system. The one reformist speaker, Elizabeth Cooke, with most experience of land law and community property laws was not at all enthusiastic towards the latter.

Questioned as to the reasons for her reluctance she never stated the nature of her reservations but she accepted it brought with it other “complications.”  Could it be that property division along community property lines would actually limit larceny by the courts and leave divorced men with some/more assets than at present ?


The vision and the potential to recast the future contained within Report No. 198 puts it head and shoulders above all other recent Law Commission reports.

With this in mind 2011 might well prove be the year when the philosophy of statism, the monolithic straightjacket of the state inflicted on a passive (or resisting) society is finally broken not only across the Arab world but in Britain too.

Georg Wilhelm Hegel’s view (b.1770 – d.1831), of the historical inevitability of modern institutions personifying the modern nation state is an ideal overturned by this Report. The Hegelian ideal that sovereignty and idealism ranks above the people who constitute the nation is coming to an end.

In matters matrimonial and dissolution we have not, in the past, been overly impressed by the Law Commission’s approach or its moral value systems. We recall the destructive influence exerted by self-confessed feminist Brenda Hoggett in the 1980s and 1990s as the Law Commissioner in charge of family law.

However, on this occasion we have to concede that the ideas contained in Report 198 sets it on a par with the repeal of ‘breach of promise’ (HC 453), Report No 26.

Messianic views, which on occasion had appeared to overtake the family law section of the Law Commission during the 1980s, now appear to be repudiated by this latest Report (No 198) into MPA, specifically we cite this as one of many examples that used to influence policy:

  • “Family Law no longer makes any attempt to buttress the stability of marriage or any other union …. Logically we have already reached a point atwhich, rather than discussing which remedies should be extended to the unmarried, we should now be considering whether the legal institution of marriage continues to serve any useful purpose”. [2] – Brenda Hoggett.

In our view it is commendable that the Law Commission has gone back to its 1965 roots, namely that of clearing out clutter and obsolete legislation that is no longer relevant or useful to society. The Law Commission should be applauded for its bravery.

We therefore welcome the introduction of nuptial agreements.

But is this a lasting epiphany ? We suggest that literally millions of men, and (we suspect) millions of women, would appreciate knowing where exactly they stand with regards matrimonial separation.

There will be those for whom the concept of nuptial agreements is so new that it will induce trepidation or even rejection. It will be difficult for some to throw off the shackles they have become so accustomed to wearing. However, the advantages of pre and post-nuptial contracts will soon become evident and the reservations will thus fade.

The onus is on the Law Commission to make laws simple, straightforward and understood by the great majority of the population. Pre-nuptial agreements (contracts) achieve this aim.

Should this Consultation Paper fails on every aspect but one in its endeavour, let it succeed in the abolition of ancillary relief (section 25) hearings in their present format.

It is a pity that reform of ancillary relief and a review of Sect 25 is not fully within the scope of the present Consultation Paper (Para 5.64 and 5.65).  In our view reform or abolition of Sect 25 for it is long overdue. However, it is so contentious an issue that it is perhaps better to let sleeping dogs lie.

With nuptial agreements legalised and/or recognised by the courts then de facto Sect 25 falls by the wayside.

Divorcing adults are constrained to work with the shadow of the law looming over them. Reminiscent of poker players neither party is likely to voluntarily show their hand knowing that the Matrimonial Causes Act 1973 applies. Each is under duress not to settle for anything less than is theoretically obtainable under law.

‘Gambling’ in these circumstances is, we suggest, more likely to bring forth the “unconscionability” and “unfairness” element that the Law Commission appears to fear. We suggest adopting Marital Property Agreements (MPA), would actually put an end to this scenario.

We also share the alternative viewpoint that adopting MPAs (Marital Property Agreements) avoids the need for a structured formal review of ancillary relief at a later date (and avoid the tax-payer further expense).

The private ordering of one’s own life (free of state intervention), we see as a monumental departure from previous invocations (see Hegelism above). The ability to exercise a degree of latitude in one’s own destiny is a very mature acceptance that Society today bears little resemblance to immediate post war period of regulation by the state.

We see direct parallels between nuptial agreements and the marriage ceremony. The latter has to be freely – but not lightly – entered into by couples. We, therefore, see no need for special protection for the same couple to enter into pre or post nuptial contracts (versus a marriage ceremony), given that it is governed by contractual law and the caveats of disclosure, frauds and coercion  – all of which have been thoroughly dealt with by the Report.

Theoretically, there are a million possible pitfalls when contemplating marriage but the reality is that few of them ever materialise. Equally, there are theoretically a million possible reasons to seek a divorce but, in actualtie, again there are but a handful of void and voidable marriages.

Hardly a social or legal reform document passes, it would appear, without the inclusion of the Married Women’s Property Act 1882 (or the preceding Acts). This consolidation Act benefited only a handful of wealthier women in England at the time, say 10%. It was, therefore, more symbolic and not the great breakthrough it has always been portrayed as representing. The Law Commission is, therefore, not alone in perpetuating this mis-information and of making the fundamental error in wrongly concluding that “relatively few married women were in employment” (see Fig 3).

That might have been true of 19th century middle class women but never working class women, i.e. the majority of women in the population. One has only to recall the Coal Mining Act 1842 which removed all women from mines – or the Liberal government of Asquith which introduced a series of social reforms prior to 1914. Asserting that relatively few married women were in employment is, at best, misleading.

We are accustomed today for 50% of the workforce to be composed of women. In 1939, whenBritainhad a population of 47.7 million (47,762,000), there were about 24 million of men and women of all ages (0 to 80+). Of these, 11 million men and 4 million women were paid employees. This ratio, as can be seen in the Table above (Fig 3), altered from 1 woman for every 3 men employed to 1 in 2 by 1952 (7 million women v 13 million men).

Women in domestic service are not shown in Fig 3 but would represent in 1882 approx. 1 million additional lower class but uninsured women employees. The decades leading up to 1939 saw numbers fall and almost disappear by 1945.

In the vein of the 1882 reforms, the Law Commission runs the risk of focusing too much on those with property and ignoring those with little or none. There is a danger of playing to a perceived audience without first checking the facts.

The Married Women’s Property Acts 1882 may only have been useful or addressed the needs of 10% of British women. The reforms outlined in Report No 198 – though desperately needed – may fall foul of a similar criticism. Reform comes on the back of high profile cases involving millions of pounds. We therefore reject the remarks contained in Para 2.11 as not only inaccurate but unfounded.

The opinion that, “marriage, by itself, has no effect at all upon property ownership”, does not appear to have impacted on the way in which courts deal with matrimonial property. To many this will come as a revelation because it is not how the courts have conducted themselves or justified their behaviour.

Are we to now believe that family courts have been misappropriating property, acting ultra vires, or confiscating it under the guise of legally, all along ? If this is the implication it seems too late and a moot point for millions of citizens.

The other revelation by the Law Commission, namely that maintenance has not been overhauled since 1857 is a damning indictment and should give every impetus to the acquisition and implementation of pre-nuptial contractsat the earliest possible moment.

A modern society cannot be burdened with an 1857 mindset.

The clinching arguments for switching to pre and post nuptial agreements and away from MCA 1973 are that it would; a).provide for certainty, b). autonomy and c). bolster marriage, ata time when it is realised that the falling marriage levels do not bode well. [3]

However, we should not forget thatin “The Field of Choice” (Cmnd 3123), the Law Commission proposed that its reforms had the following seven attainable objectives:- [4]

Marriage has been everything but buttressed. Critics would say the Law Commission failed in all its objectives and the only ones to have enjoyed relative success were, 2/. to enable the ‘dispatch’ of empty marriages, and 6/. to protect the economically vulnerable wife.

So should we, as a consequence, be wary of future Law Commission objectives / proposals ?

Is the 1857 mindset, or the Hegelism mentioned above, in evidenceat item 6 above which presumptively seeks to protect the economically vulnerable wife ? If it is, then it has crushed item 7 which seeks the respect of the public.

“Putting Asunder”, (pub. 1966), was the Archbishop of Canterbury’s alternative view to the Law Commission’s paper (The Field of Choice). The church sought a ‘post mortem’ for each divorce. The Law Commission, perhaps predicting the high level of demand, resisted any meaningful ‘inquiry’.

With hindsight we can see that the Law Commission won the day but in advancing pre-nuptial agreements which could contain clauses relating to dissolution (the when, why and how etc), we could be adopting the rejected conditions alluded to in “Putting Asunder.”

We are pleased to see that vulnerable family companies are now able to protect themselves from gold diggers (Para 6.71 and 5.53). Firmer steps may be required to close off attacks which might allow a party to profit from any future income increase.

A prime but non-company example of this is that of Ray Parlour the footballer. How can it be ‘equitable’ that a non-family member should share in his talents and success after divorce ?

Only Thorpe LJ (2004) could have concluded it was, “wrong for the earner to have sole control over that surplus during the next four years.” More Hegelism ?

Divorce should carry with it a degree of certainty if it is a legal process that is to remain respected. The state and their servants, i.e. the courts, must cease infantilising citizens. The autonomy of the common man must be respected. 

a). Certainty – We have been a long-standing commentator of ancillary relief, complaining that it was such a hit-and-miss affair and so uncertain that a better regime needed to be found.

Reaching an agreement by use of an agreement seemed to us better and less stressful to both parties concerned. We estimated it might also be much quicker and cheaper. This, we are pleased to report, is what the Report now seems to accept.

When a relationship ends it is vital that certainty exists and that prior to that divorce certainty also exists in advance of the event. Pre-nuptial agreements, we feel, can supply that certainty. When there is no certainty (as under the MCA 1973 provisions), a cat and dog fight is always on the cards.

It is in no one’s interests to have open ended financial liabilities or be subject to financial agreement that can be re-opened at will. Divorce is already a costly exercise and the idea of avoiding protracted litigation costs is to be embraced whenever possible. Similarly for custody, where legal fees and court time can sometimes exceed divorce costs. The need for certainty is essential and a timely reccomendation.

Pre-nuptial agreements can stipulate the ‘why’ and the ‘wherefores’ – how much time is spent with each parent and rotas agreed. Decisions such as sole or shared parenting can be agreed and the sharing, or not, of Child Benefit payment can also be encapsulated within MPAs.

A number of cases have, since 2006, set new precedents and undermined the received wisdom vis-à-vis property and maintenance. The once sturdy principles governing ancillary relief today look decidedly shaky. The unresolved issues arising form recent cases can be adequately and fairly dealt with by introducing pre and post-nuptial contracts.

The vast majority of divorces (as the Law Commission’s report states) involve couples with either no assets or very few. The Law Commission’s attitude (Para 5.36), might be interpreted as letting the poor fend for themselves and of concerning themselves only with the wealthiest 10% in society.

On that basis we have to disagree with the Law Commission in its appraisal of how money and assets of the poor (those on low incomes) should be allocated. It is too simplistic and too onerous on low income earners to leave the matter at presuming the bulk of any ‘wealth’ will go to the former wife and children, or that the children should be prioritised.

The Law Commission perhaps forgets that arguably this perpetuate the encouragement to divorce -bearing in mind that in most countries including Britain, over 70% of divorce petitions are brought by women (see also age / divoerce expectations in Japan, ref. graph above).

To meet the needs of the parties insofar as that is possible” (Para 5.36), is code for money transfers and wealth re-distribution from the man to the woman. Put another way, husbands are to be cashed-in as if they were a maturing insurance policy.

Wealthy women tend not have their assets and money ‘re-distributed’ to the man they are divorcing and one has to ask why ? A husband wanting to cash-in his wealthy wife meets with little success. Is this just a coincidence ?

This MPA (Marital Property Agreements), paper No 198 has given due consideration to matters related to conduct, fairness, disclosure, injustice, etc. It is therefore only fitting that the reciprocal be advanced as to whether or not the children should be prioritised ?

 This question has never been fully answered or justified given that the poverty of second marriages is worse than for the first family and that the whole purpose of the 1969 divorce reforms was to make remarriages not only possible but attractive. Ironically, as the graph below depicts, remarriages were running ahead of divorces before the 1969 reforms and the upward swing from 1956 to 1969 became a stuttering plateau.

Prioritising to the Nth degree children of the first marriage, therefore, has stultified this ambition and the results can be seen in the torpid trend line for remarriages (Fig 4).

The thinking of  behind prioritising the first family does not reflect the fact that the DHSS criteria in the 1970s switched from ‘contributions’ based benefits to ‘needs’ based benefits. Post-Finer Report, a woman no longer had to show a contributions record but simply show she was ‘in need’ of support.

The thinking also does not reflect the popularity, following the 1969 reforms, of cohabiting or serial monogamy after divorce.

Government and the Law Commission must come to realise that expecting a working mother not to go out to work simply because she is now divorced is incongruous when she went out to work and supported herself prior to the divorce. Fortunately, government at least has adjusted its position on this.

With shared parenting on the legislative drawing board and thus day-to-day care of children split, the need for prioritising the first family’s needs diminishes. The first wife will find she can more easily go out to work. We therefore forcefully reject the statement that, “There are no other possibilities” as ill-founded.

b). Autonomy – We find ourselves fully in agreement with the Law Commission’s proposals validating the right of the individual to self-determination. We see this as step change in how the state treats its citizens (Para 5.24 – 5.26).

We strongly support the argument cited in the Law Commission’s proposals that the most frequently heard reason in favour of reform is the ‘autonomy’ aspect.

We can add nothing to the views contained in Para 5.24 (i.e. ‘husband and wife are stuck with equality, however inappropriate they may both agree it to be and you must leave it to the judge who dissolves the partnership’).

If the proposal to validate pre and post-nuptial contracts provisions is adopted then society irrevocably moves into the secular world where marriage is no longer a covenant but a contract.

We share the judicial and Law Commission view that the law of ancillary relief is paternalistic and that not only is it “inappropriate in a modern world” but it doesn’t work.

It has long been our view that ancillary relief is, indeed, “patronising, in particular to women” and we agree with Lord Justice Wilson’s observations regarding ‘starting point’ and accepting the consequences.

Reservations centered on undue pressure or coercion which occur constantly in the text can be counteracted by imposing certain pre-conditions for the validity of a nuptial agreement to be binding. The taking of legal advice (Para5.30), for instance, should assuage many of these reservations.

c). Bolster marriage – It is interesting to learn that both advocates of reform as well as those opposed to it argue that ‘their position’ supports the institution of marriage. Can both be right ?  In our view, certainty together with autonomy can only have a beneficial influence.

A rapid travel back in time using statistics might reveal the truth of the claims. The graphs below show whathappened to marriage numbers when the new divorce legislation was enacted.

Following the 1969 reforms – which at the time were said to have only a short term effect on both marriage and the numbers divorcing – divorce was immediately impacted and but so too was marriage and arguably it has also never recovered since (Fig 5).

The Divorce Reform Act 1969 was enacted in 1971 and that year saw a significant fall in marriages and the setting of a long lasting downward trend.

The onset of disillusionment and distrust of the judiciary appears to begun very early and gained pace. To this end the confiscatory examples set by Ormrod and Denning (manipulation of the Land Charges Act 1972, the creation of a beneficial interest etc) were unhelpful.[5]

We agree with proponents who believe couples are dissuaded from entering marriage because only disincentives exist. The pernicious nature of ancillary relief has by now passed into urban folk lore and acts as a powerful deterrent.          

We are not convinced by the line of argument that there is nothing to prevent open discussion of property matters before marriage (Para5.21). The telling time is when the relationship falls  apart.  

 Promises and agreements reached in an idyll stand little chance of being         complied with in ancillary relief hearings (or similar), unless they have been committed to in writing.

Were the family courts to operate in the manner the Law Commission’s paper envisages there would be less room to manoeuvre but the fact is the courts are secret and immediately that proceedings begin both the spirit and the letter of the law are abandoned.

Denning made a useful contribution when he said in any court case it was the judge who was on trial and not simply the defendant. Making transcripts available to the public would reveal how derelict the family courts have been in their lack of reasonableness, fairness, equality and justice required under Sect 25 (ref. ‘reasonable requirements’), e.g. Thorpe bizarrely ruling that bigamy laws were to protect only women and could not be relied on by men as a defence against a bigamous wife.

We have not differed with the Law Commission’s overall views in this Consultation exercise but we strongly disagree with the suggestion that pre-nuptial contracts will deter marriage and / or encourage divorce.

Given the high status of marriage in the 19th century, when pre-nuptial contracts were more widely used, we do not see their use leading to a devaluing of marriage. Indeed, quite the reverse.

To conclude: professor J K Galbraith’s book The Affluent Society (1958), became both a best seller and a classic. Galbraith traced the major currents of American economic thought in the 20th century, particularly the influence of Social Darwinism and Marxism.

The relative elimination of extremes of economic insecurity, Galbraith argued, led irrationally to production becoming the foremost concern in economic thought.

The advent of quick, cheap and painless divorce as the foremost concern of the 1970s mirrors closed economic thinking after 1945. Re-distribution of wealth through divorce is not a panacea without consequences in the same way that Galbraith pointed out that the dash for production carried with it a substantial price tag penalty.




[1] The Times, October 5, 2007

[2] ‘Ends & Means: The Utility of Marriage’ Hoggett B, 1980 (aka Lady Justice Hale, and later a Law Commissioner responsible for ‘family matters’).

[3] The consequences of non-marital living (because of low fertility rates v married couples), are increased social service costs in old age, lower living standards, a lower ‘tax take’, an increased NHS burden, a pensions dilemma and greater Treasury expenditure.

[4] Law Commission Report No 6 (1966) and the Royal Commission, aka the Morton Report, 1956.

[5] See ‘Sword and Wig’ by Lord Justice Robin Dunn for a commentary of these manoeuvrings.

April 22, 2011 at 12:48 am Leave a comment

Review of Child Custody Law (1986) – Supplement to Working Paper No. 96

Related articles:

Family Law

Review of Child Law:


Supplement to Working

Paper No. 96

Custody Law in Practice

in the Divorce and Domestic Courts

by J. A. Priest and J. C. Whybrow

ISBN 0 11 730181 7


The Law Commission was set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law.

The Law Commissioners are:

  • The Honourable Mr. Justice Beldam, Chairman
  • Mr. Trevor M. Aldridge
  • Mr. Brian Davenport, Q.C.
  • Professor Julian Farrand
  • Professor Brenda Hoggett

The Secretary of the Law Commission is Mr. J. G. H. Gasson and its offices are at Conquest House, 37- 38 John Street, Theobalds Road, London, WClN 2BQ.

Jacqueline Priest is a Lecturer in Law at the University of Durham and Jonathan Whybrow is a Research Assistant at the Law Commission.

This document, completed for publication on 29 August 1986, provides background information on practice in the custody jurisdictions.

It is published as a supplement to Working Paper No. 96, Review of Child Law: Custody (1986, HMSO f7.50).

The views expressed herein are those of the authors and not those of the Law Commission.

Any inquiries relating to this document may be addressed to:

Mr. J. C. Whybrow
Law Commission
Conquest House
37-38 John Street
Theobalds Road
WClN 280
Tel: 01-242 0861 Ext. 215.


Supplement to Working Paper No. 96

Custody Law in Practice in the Divorce and Domestic Courts

Table of Contents



List of Tables, Maps and Figures



1.1 – 1.11

1 – 6


County Courts

1.3 – 1.4



Domestic Courts

1.5 – 1.6



Solicitors’ Interviews

1.7 – 1.8

2- 4



2.1 – 2.17

7 – 18


Who Applies Under the 1971 and 1978 Acts ?

2.2 – 2.5

8 – 11


Factors Influencing Applications Under the 1971 and 1978 Acts

2.6 – 2.15

11 – 16


Regional Differences in the Choice of Court

2.16 – 2.17

17 – 18



3.1 – 3.10

19 – 15


The Proportion of Contested Cases

3.2 – 3.3

19 – 20


The Role of the Court in Making Custody Orders

3.4 – 3.8

21- 24


The Relationship Between Divorce Courts and Domestic Courts

3.9 – 3.10

24 – 25



4.1 – 4.27

26 – 40


Domestic Courts

4.2 – 4.19

26 – 36

(1) Contested Cases

4.4 – 4.9

27 – 31

(2) Uncontested Cases

4.10 – 4.17

31 – 35

(3) Welfare Reports

4.18 – 4.19

35 – 36


Divorce Courts

4.20 – 4.27

36 – 40



5.1 – 5.45

41 – 65


Joint Custody

5.2 – 5.40

41 – 62


Regional Variation in Joint Custody Orders

5.2 – 5.16

41 – 51

(a) Promotion of Joint Custody

5.7 – 5.14

45 – 50

(b) Laissez-Faire



(c) Scepticism about Joint Custody


50 – 51


The Argument over Joint Custody

5.17 – 5.26

51 – 56


The Criterion Applied by the Court

5.27 – 5.29

56 – 57


The Award of Care and Control: Children’s Residence under Joint Custody Orders

30 – 5.32

58 – 59


Shared Care and Control

5.33 – 5.37

59 – 61


Other Orders

5.38 – 5.40

61 – 62

(a) Orders for Care and Control Alone



(b) Divided Custody



(c) Split Orders




Orders for the Retention of Parental Rights

5.41 – 5.45

62 – 65



6.1 – 6.18

66 – 74


The 1971 and 1978 Acts

6.2 – 6.9

66 – 70

Grandparents’ Access

6.8 – 6.9

69 – 70



6.10 – 6.18

70 – 74



7.1 – 7.26

75 – 86


Custody to Non-Parents

7.1 – 7.5

75 – 76


Care Committals

7.6 – 7.11

76 – 80


Supervision Orders

7.12 – 7.26

80 – 86



8.1 – 8.7

87 – 91

(a). The Need for Orders


87 – 88

(b). The Range of Orders

8.3 – 8.7

88 – 91



Progress of Financial Applications to Six Domestic Courts under the 1978 Act.



Progress of Applications to Six Domestic Courts under the 1971 Act.



Identity of Applicant and Status of Children in Applications under the 1971 Act.



Results of Proceedings under the 1971 Act.



Ages of Children Subject to Custody and Access Orders in Six Domestic Courts.



Custody Orders in Divorce Proceedings.



Children Subject to Custody Orders by Age and Sex.



Courts with the Highest and Lowest Proportion of Joint Custody Orders in the South Eastern and Western Circuits and the Birmingham Group of the Midland and Oxford Circuit.



Custody Orders made by the Ten Courts.



Joint Custody Orders made by the Ten Courts.



Granting of Access when a Sole Custody Order is made.



Granting of Access when a Joint Custody Order is made.



Children Admitted to Care Following Family Proceedings Each Year.



Children made Subject to Supervision Orders in Family Proceedings Each Year.




Joint Custody Orders as a Percentage of Total Custody Orders in 1985.



Wife Only Custody Orders as a Percentage of Total Custody Orders in 1985.



Husband Only Custody Orders as a Percentage of Total Custody Orders in 1985.



The Proportion of Orders in Ten Courts under which Child’s Residence with Wife.




Court Circuits and Groups in England and Wales.



Orders Granting Joint Custody as a Percentage of the Custody Orders made in Each Group in 1985.



Orders Granting Sole Custody to the Wife as a Percentage of the Custody Orders made in Each Group in 1985.



Orders Granting Sole Custody to the Husband as a Percentage of the Custody Orders made in Each Group in 1985.




1.1 This Supplement aims to give an up-to-date picture of the orders made in respect of children in the three largest custody jurisdictions. The information collected is intended to complement the analysis of the law contained in the Working Paper on Custody. [1] Specifically, we examine the award of custody and access on divorce, in proceedings between parents under the Guardianship of Minors Act 1971 and between spouses under the Domestic Proceedings and Magistrates’ Courts Act 1978.

1 .2 In Part II we look at the background to applications to domestic and county courts which result in custody orders and Part III considers the role of the court in raising the issue of custody. Part IV analyses the available statistics on the award of custody between parents and spouses and discusses a number of factors underlying the figures. In particular the prevalence of orders giving custody to women is considered. In Part V we turn to regional differences in the use by the divorce courts of their power to award joint custody. The effect of a joint custody order on the residence of the children involved is also examined. This Part ends by looking at the use by courts, other than divorce courts, of the power to order that the parent or spouse who is not living with the child retains some or all of the parental rights and duties jointly with the person caring for the child. The subsequent Parts deal with court practice in respect of access orders, custody orders in favour of non-parents, committals to local authority care and supervision orders. Where necessary, graphs, tables and maps have been collected in the Appendix.

(a) County Courts

1 .3 1985 was the first year in which records of custody and access orders made by the divorce courts were compiled from court returns by the Lord Chancellor’s Department. We draw upon these statistics and the more detailed returns of ten courts which were supplied to us over a three month period during that year giving information concerning nearly 3,000 children subject to custody orders [2]. These courts were selected, in the light of the national returns, to give a fuller picture of the practice of a set of contrasting court [3]. Additionally, during early 1986 we carried out eleven interviews with judges who regularly deal with children’s cases. Most of the interviews were conducted in courts other than (but with broadly similar results to) those which took part in our three month survey. All but one of the judges were male and, except in one court, they were interviewed separately.

1.4 County court returns of orders made under the Guardianship of Minors Act 1971 were also collected by the Department in 1985. Again, we supplemented these statistics with a more detailed survey of ten courts [4], although the quantity of business was small. Interviews with three judges were carried out to shed some light on the numerical trends.

(b) Domestic Courts

1.5 The domestic court survey was conducted over a three month period of 1985 in a region where the rate of recourse to domestic courts is amongst the highest in the country [5]. The survey had two main aims. First, it set out to examine the treatment and outcome of individual cases involving children. Information was obtained by means of individual case returns. Record was made of every case heard during the survey period, a total of 345 applications under the 1971 and 1978 Acts. Although the total number of cases is relatively small and the survey was restricted to one part of the country, it provides the first available detailed information about the award of custody in domestic courts. Secondly, the survey aimed to add considerably to the information given by official returns in respect of domestic court business and thus to provide a more detailed picture of the pattern of use of domestic courts. This information was obtained by means of weekly returns, based loosely on the annual returns which each court is required to make to the Home Office.

1.6 Interviews were conducted with ten magistrates drawn from the domestic panels of five of the six courts which took part in the survey. Three pairs of magistrates were interviewed, the other four individually. Six women magistrates were interviewed and four men. These interviews took place in September and October 1985.

(c) Solicitors’ Interviews

1.7 Interviews were conducted with 26 solicitors practising in the domestic courts which participated in the survey. The solicitors varied in age and experience. As regards the selection of solicitors to be to the justices in the survey courts. It was hoped that by this means a sample would be obtained whose main common characteristic was regular attendance at the domestic court.

1.8 Many of the questions to solicitors were concerned with the attitudes and behaviour of lay clients and it may be important to note the influence of regional factors. Certainly, most solicitors interviewed in the North East at some point mentioned certain characteristics of the region which they regarded as potentially significant in relation to the matters under discussion. Thus, frequent reference was made to the current high levels of unemployment in the North East, and to continuing working-class adherence to sex-role stereotypes traditionally associated with the heavy industries and physically demanding labour on which the region formerly depended. In view of these perceptions on the part of solicitors and the relatively heavy use of magistrates’ courts in the North East [6] nine interviews were conducted for comparative purposes in Plymouth and East Cornwall. As in the North East, the selection of solicitors was by means of suggestions obtained from clerks to the justices. Interviews in the North East were conducted in the period from March to May 1985, and in the South West in July and August 1985.

1.9 Thus, it can be seen that our information is based on analysis of statistical returns, relatively small samples from court files and interviews with a selection of legal practitioners. The court surveys provide only examples of certain courts’ results over a short period of time and might not be indicative even of these courts’ usual practices or representative of the region in which they work. Moreover, in the field of custody and access, where decisions depend on what is ‘best’ for the child [7] and turn on the facts of each case, it is not possible to draw firm conclusions about the courts’ approaches. We have not been able to examine individual cases in depth. Finally, the interviews carried out can only provide accounts of the impressions of the practitioners involved. Nevertheless, we hope that the results in our paper form a helpful addition to existing research by drawing attention to issues of current and practical importance.

1.10 In this paper we have not found it necessary to distinguish between the effect of ‘custody’ orders made on divorce and ‘legal custody’ orders made under the 1971 and 1978 Acts. According to the solicitors interviewed, clients do not appreciate any difference between the two concepts. The solicitors’ view was that the distinction between custody and legal custody is largely theoretical. [8]

1.11 We would like to express our gratitude for the assistance given to us in the preparation of this paper. In particular we would like to thank the President of the Family Division and the Lord Chancellor’s Department for granting us permission to approach the judiciary and giving access to court records. We are indebted to the judges, magistrates and solicitors who participated in our study for generously giving up their time and providing invaluable information. Thanks are also due to the staff of the Statistical Branch of Lord Chancellor’s Department and in individual county and magistrates’ courts who supplied much of our material and put up with our questioning. Most of all we are grateful to the Law Commission for setting up this exercise and in particular to Brenda Hoggett, the Law Commissioner in charge of family law, for her guidance.

Footnotes Part 1

[1] (1986) Working Paper No. 96.

[2]. The survey returns were collected by different methods: in several cases they were collected for us by the courts concerned, in others copies of orders made were supplied to us and, in the remainder, we visited the courts to take information from the files.

[3] The courts which took part were those at Aldershot and Farnham, Altrincham, Bow, Exeter, Durham, Guildford, Manchester, Middlesborough, Wandsworth and the Principal Registry of the Family Division.

[4] All but two of these courts were the same as those which took part in the divorce survey: Cambridge replaced Exeter and Lambeth replaced Bow.

[5] The participating courts were: Darlington, Durham, Hartlepool, Sedgefield, Sunderland and Teesside

[6] See paras. 2.16 – 2.17.

[7] See Part VI of the Working Paper.

[8] See ibid, paras. 2.34 2.54; the distinction between joint custody and orders for the retention of parental rights seems to be more meaningful in practice: see paras. 5.41 – 5.45 below.



2.1 Domestic courts make around 18,000 custody and access orders each year [1]. Half of these are made following proceedings between spouses for maintenance under the Domestic Proceedings and Magistrates’ Courts Act 1978 (‘the 1978 Act’); in such proceedings the court is required to consider whether to make a custody order.[2]

The remainder of these orders are made following applications for custody and access under the Guardianship of Minors Act 1971 (‘the 1971 Act’). Additionally, in 1985, 2,336 custody and access orders were made by county courts under the 1971 Act [3]. This Part sets out the use made of the 1978 and 1971 Acts during our survey and considers what may prompt these applications. At the end of this Part we note regional differences both in the number of applications made and in the choice of court to which application is made under the 1971 Act. I

A. Who Applies under the 1971 and 1978 Acts?

2.2 During the period of our domestic court survey, all 209 applications for financial assistance under the 1978 Act were made by wives, [4], 88% of these cases involved children. 110 financial orders were made, [5] 105 of which were in favour of wives with children. The progress of the financial applications is set out in Table I in the Appendix. An order for legal custody was made in 106 of the 107 applications involving children which were completed during our survey. These cases are considered in more detail later [6]. It is not possible to judge precisely how representative are our survey’s results. One indication suggests that an unusually high proportion of spouses with children may have been involved. During our survey the number of custody and access orders, as a proportion of all financial orders, was 94.5% [7]. For the whole of 1984 the proportion in these courts was 86%, whereas, nationally, the proportion was 66% [8]. The lower figures for 1984 may reflect either a higher proportion of childless spouses or a lesser propensity to make custody or access orders in other courts.

2.3 Of the 136 applications to the domestic courts for custody and access under the 1971 Act, we only have details in respect of the 89 cases which were completed during the survey [9]. These cases, 63% of which involved legitimate children, comprised 74 custody and 15 access applications. The applicants and the order they sought are set out overleaf in Table 3. The results are set out in more detail in Table 4 in the Appendix. Nearly 80% of custody applications were by mothers. However all of the access applications were by fathers of illegitimate children. Indeed 60% of fathers’ applications concerned illegitimate children, compared with 26% of mothers’.

2.4 The survey of county court proceedings under the 1971 Act found that 74% of the 68 applications which led to an order were made by mothers. The applications led to 54 custody orders, 13 access orders and one care committal. Our information is less detailed in this survey but several of the results are similar to those found in the domestic courts. Many more mothers’ than fathers’ applications led to their being awarded custody [11].

On the other hand, eight of the applications which resulted in an order simply for access were by fathers and at least six of these concerned illegitimate children [12] . In contrast to the domestic court survey, the overall majority (81%) of applications concerned illegitimate children and this may well reflect the areas in which the survey was conducted. [13]

2.5 To summarise, therefore, all the applications under the 1978 Act were made by wives, mostly those with children. Fathers took the initiative in more cases under the 1971 Act, particularly in respect of illegitimate children and, in about 50% of their applications, were seeking access. Nevertheless even under that Act the majority of applicants were mothers.

B. Factors Influencing Applications Under the 1971 and 1978 Acts

2.6 A general theme which emerged from the interviews carried out with judges, magistrates and solicitors was that a considerable additional burden, particularly financial, is placed on the spouse who, on separation, cares for the children. This observation is reflected in the preponderance of cases involving children in the survey of the 1978 Act and in the high proportion of maintenance orders made in Guardianship of Minors Act cases [14]. Several solicitors added that financial orders in domestic courts are sought not only out of financial need but also to give psychological security to the applicant by formalising her position after separation. Many commented that childless couples are often able to come to some financial arrangement to tide them over until divorce without the need for earlier domestic proceedings. In other cases, an application for financial assistance under the 1978 Act may be prompted by a feeling that it is too early in the matrimonial difficulties to commence divorce proceedings. [15]

2.7 The solicitors’ interviews indicated that the first suggestion that a financial order be sought frequently comes from an external agency. Almost all the solicitors interviewed in the North East deal with a large number of clients who say that they have been advised by the D.H.S.S. to consult a solicitor with a view to obtaining maintenance from their spouses. Two North East solicitors independently estimated that at least 50% of matrimonial proceedings and up to 90% of affiliation [16] cases are brought at the prompting of the D.H.S.S. and although other solicitors did not attempt to place a figure on D.H.S.S. referrals there was general agreement that they represent a large proportion of applicants for maintenance. The Supplementary Benefits Handbook published by D.H.S.S. states that, where a husband is unwilling to meet his liability to maintain his wife, the latter is “given the option of taking her own proceedings” but “the decision … is entirely a matter for her” [17]. Within the North East, however, it emerged that attitudes and practices vary from one D.H.S.S. office to another, and at the same office over periods of time. By contrast, in the interviews conducted in the South West, the role of the D.H.S.S. in prompting proceedings was not a factor which most solicitors immediately called to mind. From the point of view of the D.H.S.S., there are two distinct functions to be performed by domestic court proceedings. First, an order assists in establishing a claimant’s right to separate assessment of benefit by furnishing proof that a marital separation has in fact occurred. Secondly, the drain on the public purse may be reduced by recovering maintenance from men who have the resources to maintain their families.

However, there was general agreement amongst solicitors that maintenance awarded by the court is seldom sufficient to lift the recipient off state benefits altogether.

2.8 As has been noted above, in our survey of domestic courts the proportion of applications under the 1978 Act which also result in a custody order was remarkably high [l8]. The solicitors interviewed reported that a custody order will invariably be sought in proceedings under the 1978 Act even if there is no realistic prospect of dispute: a custody order is ‘part of the package’ for the client and will be requested from the court as a matter of course [19]. Most considered that they would be failing in their duty to clients if they did not ‘tie up all the loose ends’ in this manner. Moreover, several solicitors added that by obtaining a custody order in the magistrates’ court the passage of later divorce proceedings, particularly the children’s appointment, can be facilitated. The approach of domestic courts to the award of custody is considered in Part III.

2.9 Alternatively, a mother or father of the child may seek custody or access directly under the 1971 Act. The number of cases in which an order is made to resolve a dispute seems to be small in relation to the total number of orders made [20]. However solicitors reported that in a larger percentage of cases – and a majority felt that it was a considerably larger percentage – there is an initial dispute, after which the intention to contest lapses so that the case proceeds to the making of an unopposed order. There clearly remains a significant proportion of cases in which there is never any likelihood of opposition to the order, so that other reasons must be sought for the bringing of proceedings.

2.10 The solicitors interviewed find that it is common for women to want a custody order on separating from their husbands. The court order is perceived as lending security to the child’s residence and providing formal sanction for the family’s new arrangements. Thus, if there is no necessity for, or financial value in, an application under the 1978 Act, proceedings will be brought under the Guardianship of Minors Act 1971. In some cases there will be an underlying fear of the children’s removal by the other parent. Where this is not a factor, many solicitors prefer to take advantage of an acquiescence in the current state of affairs by applying for an agreed order; others advise proceedings only if the husband has seriously threatened to take the children away.

2.11 As with applications under the 1978 Act, the practices and attitudes of external agencies may have a bearing on the decision to bring proceedings. In the North Eastern interviews the requirements of local authority housing departments emerged as particularly relevant. On the one hand, local authorities are anxious to avoid wasteful allocation of housing stock. Thus, a custody order is required in an attempt to ensure that family-sized accommodation will not end up being occupied by only one person. On the other hand, and solicitors tended to regard this as a factor which looms large in the thinking of local authorities, a custody order is regarded as a form of assurance that an assertion of marital breakdown is not being used as a device to ‘jump the queue’ and get the whole family re-housed. Thus, there is an insistence on ‘proof’ of separation (sometimes in the form of an order under the 1978 Act even though a custody order has already been obtained under the 1971 Act) so that the local authority does not subsequently find that the husband has moved in with his wife and children after they have been rehoused on the basis of the wife’s assertion of marriage breakdown. As in the case of the D.H.S.S., practices vary from place to place and from time to time.

2.12 In contrast to the North Eastern interviews, the demands of In contrast to the North Eastern interviews, the demands of local housing authorities were not mentioned spontaneously by any of the solicitors interviewed in the South West and, when prompted on this point, most could not recall cases where housing department policy had been a major factor. Solicitors in the South West were more inclined to attribute proceedings primarily to mothers’ insecurity (about themselves and their children) and the desire for ratification of the change in circumstances. As with the supplementary benefit considerations, the low awareness of housing considerations in the South West may reflect different social and economic conditions in the two regions, but cannot be taken as evidence of different attitudes on the part of housing authorities.

2.13 Another factor which was commonly mentioned in the South West but which only rarely emerged as a relevant consideration in the North East was the wish to embody an agreement for child maintenance in an order for the sake of a claim to tax relief. It seems that an application under the 1971 Act is still seen as the most obvious procedure to use in the tax relief cases, notwithstanding the consent order provisions of section 6 of the 1978 Act which do not require the case to be ‘dressed up’ as a custody application in which maintenance hangs on the coat tails of the custody order. Proceedings will also be taken under the 1971 Act if, as solicitors asserted is often the case, maintenance is sought only for the child. Indeed, there was some evidence in the domestic court survey of proceedings under the 1978 Act being withdrawn in favour of proceedings under the 1971 Act when an agreement is reached that maintenance should be paid only for the child.

2.14 As is noted above, a large proportion of applications under the 1971 Act seem to involve illegitimate children. Where custody or access is sought by the father of an illegitimate child, an order will theoretically be necessary to compensate for his lack of parental rights [21]. In the case of illegitimate children whose parents have been cohabiting, some solicitors thought that the parents are much more likely than married couples to sever all contact when the relationship ends. The more common view, however, was that cohabitees exhibit much the same range of behaviour in relation to their children as separated and divorced couples, although unmarried fathers are often aware of and worried by their lack of parental rights. Several judges and magistrates specifically noted an increase in’ fathers’ claims made after cohabitation has ceased.

2.15 There has been a large increase in the number of custody and access orders made in county courts under the 1971 Act. In 1976 there were only 194 orders made, including those for periodical payments and concerning guardianship [22]. In 1985 the number of custody and access orders rose to 2,336. Applications are concentrated in urban areas and, most heavily, in London. Such applications may be linked not only to levels of cohabitation but also to applications for non-molestation and ouster orders made since the introduction of the Domestic Violence and Matrimonial Proceedings Act 1976. Several judges explained that custody or access applications may be made with the courts’ encouragement to attempt to get to the root of the problem which led to an emergency application under the 1976 Act.

C. Regional Differences in the Choice of Court [23]

2.16 Use of domestic courts varies considerably across the country with the highest number of applications concentrated in the North and North Midlands, both in terms of absolute numbers and per head of the population.[24] The respective use of the 1971 and 1978 Acts for custody and access applications is broadly similar across the country, although the 1984 figure of 13,120 applications under the 1971 Act was nearly 3,000 more than the total made under the 1978 Act.[25] Amongst the county courts the concentration of the relatively small amount of business is in the South East.[26] Nearly 60% of custody and access applications to county courts under the 1971 Act were recorded in the South Eastern Circuit. The largest returns were recorded in the London boroughs, particularly Lambeth, in which approaching 500, or 20% of the total number of county court custody and access orders, were made.

2.17 In discussing the choice between the magistrates’ and county courts in relation to proceedings under the 1971 Act the immediate reaction of almost all the North Eastern solicitors was to refer to the difficulties in obtaining legal aid to go to the county court. Many referred to the relative ease, in terms of time and work involved, with which Assistance By Way of Representation (ABWOR) can be obtained for magistrates’ courts proceedings. Other factors mentioned in favour of magistrates’ courts were speed, familiarity, convenience (since solicitors will often have other business in the same court), proximity, and a desire to keep control of the case rather than pass it on to counsel. On the other hand, several solicitors preferred to use the county court wherever possible: they referred ‘to the lack of consulting space or interview rooms in magistrates’ courts, the absence in some courts of an appointments system and the general unpleasantness of the atmosphere and physical surroundings in the public areas of some domestic court buildings. The majority of solicitors referred to the greater chance that a county court judge would be prepared to go against the recommendation in a welfare report or make some other ‘courageous’ decision. However in the North East these factors may have little direct impact, given the influence of legal aid considerations. Solicitors in the South West held a broadly similar range of opinions, although restrictions on legal aid tended not to come to the fore.

Footnotes Part 2

[1] Excluding interim orders, Home Office Statistical Bulletin 24/85, Table 2. It is likely that each case in which custody and/or access was ordered has been counted as one return. However rare cases in which children are split up between their parents may have been counted as two orders. More generally, each order may relate to more than one child so that the exact number of children involved is not known.

[2] Section 8(1) and (2).

[3] 1,757 of which were custody orders (with or without access), 558 were orders for access in favour of a parent of the child and 21 were access orders in favour of grandparents (figures supplied by the Lord Chancellor’s Department). These figures do not include orders made by the Principal Registry of the Family Division, which also has High Court jurisdiction under the 1971 Act, and made 9 orders under that Act in 1984: Judicial Statistics Annual Report 1984 (1985) Cmnd. 9599, Table 4.4.

[4] 156 applications were made under section 2, alleging, for example, failure to provide reasonable maintenance for the applicant or a child of the family. The remaining 53 (25%) applications were, for consent orders, under section 6, in respect of payments which had been agreed between the parties. This contrasts with the national proportion of applications by consent (38%): Home Office Statistical Bulletin 24/85, Table 2.

[5] 48, or 44%, of which were consent orders. 57% of applications under section 2 were withdrawn or adjourned and 3% were refused. Solicitors interviewed offered three reasons for the rate of withdrawal: reconciliation, withdrawal in favour of divorce proceedings and agreement resulting in application for a consent order. Withdrawal (not including adjournments) accounted for 54% of the total number of applications made under section 2 in 1984: Home Office Statistical Bulletin 24/85, Table 2.

[6] See para. 2.8 below.

[7] Excluding two custody/access orders which were made in cases where no financial order was made.

[8] Respectively, a further 20 and 242, custody/access orders were made in cases where no financial order was made: Home Office Statistical Bulletin 24/85, Table 2.

[9] Although we do know that 83 161%) of the total number of applications were by mothers and that 93 (68%) related to legitimate children. 63% of all applications resulted in an order, which compares with a proportion of 69% for England and Wales in1984: Home Office Statistical Bulletin 24/85, Table 2. The latter figure does not take into account adjournments. The success rate of applications during our survey period is set out in Table 2. An appreciably higher percentage of applications were withdrawn or adjourned in respect of legitimate children than in respect of illegitimate (40% as compared with 23%): it may be that reconciliation and withdrawal in favour of divorce proceedings operates in these cases, see n. 5.

[10] Each case may have involved more than one child. In one further case (legitimate child) a father applied for custody to be awarded to the mother and was himself granted access. Fathers made 7 cross applications, 5 for access (4 of which to an illegitimate child) and 2 for custody (1 of an illegitimate child). Mothers made 4 cross applications, all in respect of legitimate children, 3 for custody.

[11] The survey returns did not specify what an application was for in a given case. 43 of the 52 applications by mothers resulted in a custody order in the applicant’s favour, as opposed to 5 of the 16 applications by fathers. In three cases mothers made applications in which custody was awarded to the father, and in three fathers’ applications mothers were awarded custody. The most likely explanation for this result is that these cases were contested. The number of contests was not collected in our survey.

[12] In one case the status of the children was unknown. In a further five applications by mothers the only order was for access by the father. All of these were in respect of illegitimate children.

[13] See paras. 2.14 – 2.16. The status of only 59 children was recorded. Applications in respect of legitimate children were made by both mothers and fathers (5 and 6 cases respectively).

[14] A maintenance order was made in 47 of the 56 cases in which a custody order was made under the 1971 Act by magistrates in respect of legitimate children.

[15] Many solicitors anticipated a drop in the number of matrimonial cases in the domestic court as a result of the reduction in the minimum duration of marriage before which a petition of divorce may be presented: Matrimonial and Family Proceedings Act 1984, s.1

[16] Applications for maintenance in respect of illegitimate children under the Affiliation Proceedings Act 1957.

[17] (1984), para. 13.11. In a survey in Sheffield in 1980 it was found that the D.H.S.S. in some circumstances “encourages wives to take their husbands back to court annually to recoup the annual shortfall for the state” following increase in supplementary benefit rates: Smart, “The Ties that Bind” (1984), p. 198.

[18] See para. 2.2.

[19] Nevertheless, the application forms suggested for use in the domestic court do not contain provision for custody: Magistrates’ Courts (Matrimonial Proceedings) Rules 1980, Forms 1, 3 and 6.

[20] See para. 3.3 The same appears to be true under the 1978 Act.from the limited amount of information available

[21] The parental rights and duties in respect of an illegitimate child vest in the mother: Children Act 1975, s. 85(7).

[22] Judicial Statistics Annual Report 1976 (1977) Cmnd. 6875, Table C.9 (X).

[23] Practice in respect of the overlapping jurisdictions in family proceedings is being studied currently by the University of Bristol Socio-Legal Centre for Family Studies.

[24] Home Office Statistical Bulletin 24/85, Tables 6 and 7.

[25] Ibid., Table 6.

[26] Figures supplied by the Lord Chancellor’s Department.



3.1 In this Part we take a closer look at the proportion of cases before the domestic and divorce courts which are contested on custody to a final hearing [1]. Secondly, we report on the attitudes of the judges and magistrates interviewed towards making custody orders in the substantial percentage of cases in which the award of custody is unopposed. Finally, we examine the approach of the divorce court to cases in which the domestic court has previously made an order as to custody.

A. The Proportion of Contested Cases

3.2 Previous studies of divorce proceedings have indicated that only a small proportion of cases are contested to a full hearing on custody [2]. The largest survey put the figure at 6%.[3]. To define what constitutes a ‘contest’ for these purposes presents difficulty and 6% may be an underestimate [4]. Nevertheless, taking 6% of the total number of children under 16 whose parents divorced in 1984, approximately 9,000 children would have been involved in court-resolved custody disputes. [5]

Moreover, a number of potential custody contests may have been resolved in earlier proceedings under the 1971 or 1978 Acts. However the small amount of information we obtained in our domestic court survey indicates that there are few such disputes resolved at a full hearing in a magistrates’ court.

3.3 The domestic court survey involved 196 cases concerning children which proceeded to a court’s determination on custody or access [6] These cases resulted in 189 custody orders and three orders simply for access; in three cases an access order was refused [7].

106 custody orders were made under the 1978 Act, only one of which was contested on custody at the hearing.

83 custody orders were made under the 1971 Act, five of which involved custody disputes. Therefore, a total of 6 cases (3%) were contested on custody at the final hearing.

B. The Role of the Court in Making Custody Orders

3.4 Domestic courts are required to consider whether to make a custody order before dismissing, or making a final order on, a financial application under the 1978 Act [8]. It has already been noted in Part II that in our survey a custody order was made on all but one of the 107 applications for financial relief which involved spouses with children and were not withdrawn or adjourned. Custody was ordered even in the two cases in which the application for financial relief was refused [10]. In the interviews, magistrates said that they expect to be asked to make a custody order in cases involving children [11]. Many commented that they would be concerned to know why a custody order was not being sought in any case where this occurred, and would generally prefer to see the case concluded by making such an order. [12]

3.5 In applications for access under section 9 of the Guardianship of Minors Act 1971 there is no obligation on the court to decide whether to make a custody order.[13] In our survey there were 15 applications by fathers (of illegitimate children) for access alone [14], in nine of which the court [15], perhaps of its own motion, [16] granted custody to the mother, in addition to access for the father. In these cases access had been uncontested. Of the other six cases, in three access alone was ordered (uncontested) and in three more no order was made (two of which were contested on access). Additionally as has been seen above, [17] in applications to the county court for domestic violence injunctions the court itself may suggest that an application is made for custody or access.

3.6 The practice of divorce courts in making custody orders must be seen in the light of their duty to be satisfied as to the children’s arrangements before they may grant a decree absolute of divorce [18]. It is most common for the children’s appointment to be held at the same time as the decree nisi of divorce is granted. At the end of the appointment custody and access orders are made with the declaration of satisfaction. As is discussed below,[19] in a proportion of cases a divorce court will make no custody order of its own because it sees no reason to change a previous court’s order. However, even if no such order exists, a divorce court may make no order as to custody or care and control of the children, so that, effectively in law, custody will remain equally held by the parents.[20] We found, in the six courts where this information was obtained, that no order as to custody was made in 8.8% of cases involving children. [21] The results varied from nil in one court to 16.3% in another and 12.3% in the Principal Registry of the Family Division, with no obvious pattern of regional variation. Our returns are comparable with those found by previous studies. [22]

3.7 It is clear, however, that a custody order will be made in the vast majority of divorce cases. I t seems that only a small proportion of these will be contested.[23] In the interviews judges thought that an order should be made unless a previous court’s order is operative, or, according to some, the children are nearly 16 years old (and more commonly when over that age). The rationale for this practice seems to be tied to the expression of satisfaction in the children’s arrangements and, as one judge put it, “it does no harm”.

Making no order, it was thought, may cause difficulty, for example, about consent to medical treatment and could itself even precipitate disputes over a child’s custody in the future.

3.8 Our survey did not provide sufficient information on the cases in which no order was made for us to be able to add to the list of relevant factors set out by the earlier Wolfson study [24] This study noted, as we found, that P.R.F.D. had a high number of such cases. From the few cases which came before our scrutiny no pattern seems to emerge. From the interviews with judges, there is some evidence of a ‘hands off’ approach in some courts when the parties are amicable and no order is made in preference to an order for shared care and control and/or joint custody [25]. We had anticipated that ‘no order’ cases might be particularly prevalent in respect of older childen because of their greater ability to determine their own residence. . However the highest incidence was found in respect of children under 5.

C. The Relationship Between Divorce Courts and Domestic Courts

3.9 Previous studies have indicated that a magistrates’ court may previously have made a custody order in around a third of divorce cases involving children [26]. The Wolfson study found that the divorce court made a new order in 18% of cases where there was a pre-existing magistrates’ order but the order only differed from the magistrates’ in 2% of cases and, then, this was to “make adjustments in the light of later developments”. [27]

3.10 As will be seen below, there is a willingness on the part of some divorce courts to change a magistrates’ order to joint custody in appropriate cases.[28] Nevertheless, it is clear that in many courts a pre-existing custody order will survive divorce proceedings. The majority of judges interviewed saw no reason to make a new order in such cases. From the records of seven courts, 247 or 15% of children were not made subject to a divorce court’s order, leaving a previous custody order in place.[29] The range of returns was from 1.3% (Aldershot) and 2.3% (Exeter) to 20.6% (Manchester), 23% (Durham) and 26.946 (Middlesbrough). The regional variation in practice seems to reflect both the greater use of the magistrates’ jurisdiction in the North and differences in the willingness of the court to intervene.

Footnotes Part 3

[1] The county court survey of cases under the 1971 Act did not provide information on contests.

[2] Maidment, “A Study in Child Custody” (1976) 6 Fam. Law 196, 236 at p. 196, a study (‘Keele) of 95 divorce petitions involving children filed in 1973 in a North Midlands county court; Eekelaar and Clive with Clarke and Raikes, Custody After Divorce (1977), Family Law Studies No. 1, Centre for Socio-Legal Studies, Wolfson College, Oxford, Chapter 6, a study (‘Wolfson’) of 652 divorces involving children in 1974, from a sample of 10 courts across the country. See also Maidment, Child Custody and Divorce (1984), Chapter 3.

[3] The Wolfson study, N.

[4] Ibid., and see Eekelaar, “Children in Divorce: Some Further Data” [19823 O.J.L.S. 63.

[5] 148,600 children under 16 were involved in divorce in 1984: O.P.C.S. Monitor FM2 85/1, Table 8. This figure includes annulments of marriage.

[6] Including the cases where, on an application for financial relief under the 1978 Act, the court is required to decide whether to exercise its powers in respect of custody and access (section 8(1) and (2)).

[7] All of which were applications by fathers for access to an illegitimate child. In one further case under the 1978 Act, although maintenance was ordered no order was made in respect of custody of or access to the children (uncontested). In a study of 108 applications for custody dealt with by magistrates in Sheffield over a three month period in 1980, only six appeared to be contested: Smart, The Ties that Bind (1984), p. 210 and Table 9.8. All of the contests were under the 1971 Act.

[8] Section 8(1) and (2).

[9] Para. 2.2.

10 In these cases, as in all the cases in our survey, an order was not made for maintenance for the children under section 11.

[11] And solicitors expect to ask for custody, see para. 2.8.

[12] The prescribed form for financial orders includes provision for custody and access orders: Magistrates’ Courts (Matrimonial Proceedings) Rules 1980, Form 13.

[13] The court may make “such order regarding … custody of the minor … as (it) thinks fit”: in deciding any question relating to the child’s upbringing it is bound to give “first and paramount consideration” to the child’s welfare, which may, on the facts of the case, oblige it to make a custody order: Guardianship of Minors Act 1971, s. 1.

[14] As to which, see Part VIA.

[15] All the courts in our survey were prepared to grant custody on an application for access.

[16] However, custody may have been orally requested at the hearing by one of the parties.

[17] Para. 2.15.

[18] As to which see the Part IV of Working Paper. For the exceptions to the requirement of satisfaction, see the Matrimonial Causes Act 1973, s. 4l(l)(b)(ii) and (c).

[19] Para. 3.9.

[20] See Part IVB of the Working Paper.

[21] From the courts at Aldershot, Altrincham, Bow, Exeter and Manchester and the

[22] Keele (6%) and Wolfson (8.8%), op. cit. n. 2, p. 199 and para. 5.11 respectively.

[23] See para. 3.2 above and Part IVB.

[24] Op. cit. n. 2, paras. 5.12 – 5.14. Suggested reasons for making no order included the age of the child (over 16, the lack of requests for custody by the parties, and the child’s residence abroad. However in nearly half of the cases in their study no explanation could be proffered.

[25] See paras. 5.33-5.37 below.

[26] Keele and Wolfson, op. cit. n. 2, p. 197 and para. 5.15 respectively.

[27] ibid., para. 5.19.

[28] Para. 5.7.

[29] The courts at Aldershot, Altrincham, Bow, Durham, Exeter, Manchester and Middlesbrough: a total of 1612 cases. The orders had been made mainly in magistrates’ courts, including several in care proceedings. Some orders had been made in previous divorce court proceedings and, thus, related to children who were not the children of both parties to the marriage in question. Others had been made in county courts (under the 1971 Act), wardship and judicial separation.



4.1 In this Part we examine the available statistics on the award of custody between parents and spouses, starting with orders made in domestic courts. As will be seen, some of the findings in the domestic court survey are similar to those of previous divorce court studies. Since those studies the number of joint custody orders made on divorce has considerably increased, although joint custody remains the minority order in most courts. Information concerning the award of custody by divorce courts is set out in Section B of this Part. Joint custody and the magistrates’ similar order for the retention of parental rights are considered in more detail in Part V.

A. Domestic Courts

4.2 In the domestic court survey all of the 106 legal custody orders made under the 1978 Act were in favour of the wife. Under the 1971 Act fathers were granted custody in 12 of the 83 cases in which a legal custody order was made [1]. Overall, therefore, fathers were awarded legal custody in 6% of the domestic court survey cases.

4.3 Studies have found a higher proportion of male-custody in the divorce courts [2] and three factors may have influenced our domestic court result. First, in our survey the use of the 1978 Act was monopolised by wives looking after children [3].

Secondly, the North East may be an area in which relatively few fathers seek to take on child-rearing responsibility [4]. Thirdly, the ages of the children who took part in our survey were lower than are found, on average, in divorce [5], and as is suggested below [6], it seems to be more common for fathers to be granted custody of older children. As Table 5 indicates, nearly half of the children in the domestic court survey were under five and, under the 1971 Act, under-fives formed 84% of the total number of illegitimate children. Even excluding illegitimate children, under-fives formed 43% of the children in our survey.

(1) Contested Cases

4.4 In the six contested hearings the mother was granted legal custody [7]. All of the children were aged under seven and eight of the nine children concerned were girls [8]. In two cases (girls aged six and four; girl aged three) the order effected a change in the child’s residence (and a supervision order was made). In relation to the girl aged three, the case return did not supply information on how long she had been living with her father (the ‘status quo’) but in the case of the two girls, the children had been with their father or their paternal grand-parents since their parents’ separation five months previously. A welfare report was available in each of the contested cases except the one under the 1978 Act, which did not result in a change in the child’s residence.

4.5 The number of contested cases in our survey is clearly too small to draw any conclusions from the results; however, comparison may be made with the 39 contested cases found in the largest previous divorce court study (‘the Wolfson study’)[9] First, in that study the majority of contests resulted in wives being granted custody and, where the husband was awarded custody, it was not in respect of very young children. Only six of the 39 contested cases resulted in an order providing for the children to live with the husband [10]. The cases in which the children continued to live with the husband despite the wife’s claim for custody involved, out of a total of twelve, ten children aged over four, the majority of whom were aged 5-11; and boys and girls were equally represented [11]. Secondly, as in our study, in only two cases did the court itself order a change in the child’s residence, in each case in favour of the wife [12]. The study concluded that they detected “certain judicial caution about allowing husbands to look after children ….” [13]. Finally, in contrast to our survey, a welfare report was ordered in a rather lower proportion of cases which were contested on custody (or access), 53% of the two cases involving change in the children’s residence in the Wolfson study there was no report in one and in the other the court went against the officer’s recommendation [14].

4.6 The magistrates interviewed in our own study were asked what factors affect the outcome of contested custody cases. They stressed the need to provide the child with a secure and settled atmosphere: they would be looking for stability in the home. They would compare the child’s relationship with each claimant; the atmosphere in each home; the time which each claimant has available to care for the child; the ‘social setting’ of each home, both in general terms (the standard of accommodation and so on) and in terms of the background support which each claimant might be expected to receive, for example, from grandparents and other relatives. Reference was made to the dependence of many fathers, possibly for years ahead, on arrangements reached with family, friends or neighbours; arrangements which often in practice, it was suggested, can be very fragile.

4.7 The age of the child will generally be a crucial factor, [5] not only as regards the level of care required by a younger child, but also as regards older children if there was a question of a move which would disrupt schooling or other associations. The character of, and the child’s relationship with, any other persons involved, such as a parent’s new partner, would also be important. The known wishes of the child would also be relevant, but the court would be mainly concerned with each parent’s stability and sense of responsibility, looking for a caring parent prepared to make sacrifices in order to have the child.

4.8 Asked directly which factors tend to be decisive, half the magistrates were reluctant to attempt an answer, stressing the need to approach each individual case on its merits. The most common response of the remaining magistrates was to refer to the quality of care which the child might expect from each claimant, and the child’s prospects of a stable background. Two magistrates (interviewed together) expressed their answer in terms of the child’s bonding with each parent and said that they ask themselves “With whom will the child be happiest?”, commenting that a clear answer to this question can sometimes override issues of parental competence to a certain extent.

4.9 When faced with a father’s request for custody, three magistrates said that they would want to be sure that there is something in him to compensate for his not being the mother. Two of these took the view that they start by expecting to give custody to the mother. However, these and most other magistrates had no difficulty in recalling cases where the father was ‘excellent’ and undoubtedly the proper person to have custody. This is most likely to be established where the court’s sanction is sought for arrangements under which the father already has actual custody and where the children have settled well in his care. Most solicitors considered that a former preference amongst the courts for mother-custody had yielded ground considerably in favour of maintaining the status quo. Almost half the solicitors felt that a father who shows competence in caring for the children and who has gone to some lengths to organise good arrangements now stands a much better chance of obtaining a custody order than would have been the case only a few years ago. Similarly, the Wolfson study itself found that, apart from two cases, “the principle in favour of the status quo prevailed even ‘when contested 30 by the wife”[16]. Nevertheless, in our domestic court survey no father succeeded in a contested custody hearing.

(2) Uncontested Cases

4.10 The award of custody was uncontested in 183 cases, which represent 97% of the total number of custody orders made. In 12 cases, all under the 1971 Act, fathers were awarded custody, all of which were unopposed by mothers, at least by the final hearing, and none involved a change in the child’s residence.[l7] Nine of these custody orders concerned legitimate children.[18] Of the cases in which custody was granted to the father, 13 (59%) of the 22 children involved were boys; 16 of the children (72.5%) had reached school age, and two more soon would do so. In three of these cases no child under ten was involved. Of the nine cases involving children under ten, five cases involved a single child, while three cases concerned families where at least one sibling was over the age of ten. These findings contrast with the contested cases in which mothers were awarded custody, which involved younger children and a higher proportion of girls.

4.11 The prevalence of custody orders in favour of women has been demonstrated by previous divorce court studies and is considered in more detail in Section B of this Part and in Part V. However, as for contested cases, one similarity which is apparent between our findings and those of the Wolfson study is the lack of change of the children’s residence at the time of the custody order. In only one case did the court’s order in an uncontested case involve the transfer of the child (in this instance from father to mother). The Wolfson study found that such a transfer occurred in only two of 607 uncontested cases.[19] Both of these involved the children moving to the wife and in neither was a report ordered. Our findings seem to confirm the experiences of the solicitors interviewed that in the vast majority of cases mothers get custody by agreement and that custody orders in favour of fathers are unopposed, at least by the final hearing. This case did not involve a welfare report.

4.12 A variety of not unrelated reasons were suggested by solicitors to account for the lack of claims to custody by fathers. It was said that many fathers, especially those who have not been much involved with the care of the children in the past, simply do not consider claiming custody, regarding it as a mother’s job to look after children. Some of these fathers give solicitors the impression of being ‘not really bothered’ about the children. Others appear to expect that they would fail if they claimed custody and are resigned in this belief. Some feel that they would not be able to cope with custody of the children, not simply because of work commitments, but also because the pattern of daily life before the marital breakdown has left them ill-equipped to do so. Several solicitors thought that it is not infrequent, where fathers do gain custody, for the children to be subsequently transferred to the mother’s care by consent [20] A small number of solicitors felt that they had detected an increase in the number of fathers’ claims, perhaps due to high levels of unemployment which have made it possible for more fathers to offer full time care.

4.13 Most of the solicitors referred to ‘knee-jerk’ cases where a determination to fight for custody is a father’s first reaction when faced with the loss of wife, children and home. Several solicitors were of the opinion that disputes over custody are more likely to occur in the magistrates’ court than in the divorce court because, by the divorce stage, the dust has begun to settle, a process of healing has set in, and the parties, particularly fathers, are beginning to be able to see a future for themselves independent of the rest of the family. However, as has been seen above, [21] in our survey custody was seldom contested in domestic courts. Some solicitors felt that for many fathers a decision to contest custody is more a part of the parents’ private battle than the result of real concern for the children. Solicitors felt that in some cases, generally involving professional and middle-class men (teachers and the like), the decision to contest is a face-saving exercise on the part of fathers. Such fathers were not unlikely to suggest splitting the children between their parents.

4.14 A small number of solicitors referred to cases in which fathers say that they want to fight for custody (even where their claim is clearly hopeless) to ensure that the children realise as they grow older that they were not simply abandoned by their father – that he did care and did ‘put up a fight’ for them. However, a considerably larger number of solicitors considered this factor to be of much more significance in the case of mothers seeking to regain children whom they had left behind on leaving their husbands. Such mothers, even when faced with a father who is coping well and who has the ‘status quo’ argument on his side, will often insist on fighting to the end. On the other hand, one reason (described as ‘not uncommon’) for a mother’s failure to seek custody is her new partner’s objection to having the children in their household. Otherwise, the most likely cause was said to be the mother’s serious inadequacy, as a result of which she has virtually given up trying to be a mother.

4.15 A large majority of solicitors distinguished between fathers’ claims prompted by considerations such as those outlined above and cases (which solicitors tended to describe as ‘genuine’ cases) in which fathers sincerely believe that the children’s interests will not be best served by remaining with their mother. Occasionally, too, a father who is concerned about the welfare of his children will make a claim for custody not for its own sake, but as a means of involving a third party – the person responsible for preparing the welfare report – and obtaining information and reassurance where the mother refuses to keep him informed as to the children’s well-being. Most solicitors felt that a significant minority of fathers believe at the time of separation that it is the right thing for the children’s sake that the father should have custody, and that those who insist on contesting a hearing usually have some very specific complaint or cause for concern. For example, it may be that the wife has moved in with her lesbian lover, or is in unsatisfactory accommodation, or leaves the children unattended for long periods or is on the point of a nervous breakdown or has other severe health problems.

4.16 In those cases where an intention to contest custody lapses, the prospect of almost certain failure was universally identified as the most significant factor. In ‘knee-jerk’ cases, this might be coupled with an abatement of antagonism towards the mother and a realisation that there is a way of life open to the father without his children. Sometimes too, an improved attitude towards access on the part of the mother can take the heat out of the situation. A father’s acceptance of his position as hopeless may occur on production of an adverse welfare report and a solicitor’s advice as to the difficulty of persuading a court (particularly a magistrates’ court) to go against a report’s recommendations. More often, however, solicitors thought that the intention to contest custody is abandoned at an earlier stage, though it may still be due to the involvement of the welfare officer, whose inquiries may lead a father to reassess his position and may bring home to him the impracticality of assuming responsibility for the children’s care. Most solicitors indicated that they advise clients against pursuing claims for custody which have little chance of success, because of the danger of jeopardising the prospects of an agreement for generous access. Generally, fathers can be talked out of continuing the fight in hopeless cases, albeit perhaps only at a relatively late stage. Most solicitors are anxious to ensure that fathers are under no illusions about their prospects of success. Indeed, several wondered if perhaps solicitors tend to be too discouraging.

4.17 The reasons given by solicitors in the South West for contesting custody and for withdrawing from a contest corresponded with those given in the North East. Solicitors’ perceptions may be compared with the views expressed by magistrates, who confirmed that the majority of requests for custody orders are for agreed or uncontested orders in favour of mothers and felt that this in turn results from a feeling that the mother is the natural person to care for children, mainly, but not exclusively, because of the expectation that fathers will go out to work.

The prevailing view among the magistrates interviewed was that fathers who really want custody will apply for it and are generally well-informed as to their right to do so. Three magistrates referred to a recent increase in the numbers of claims by – and orders in favour of – fathers, and suggested that this may be attributable to the removal (by unemployment) of the main obstacle to the assumption of full-time care by fathers. Most magistrates specifically mentioned their dislike of cases where the father is applying for custody expecting simply to turn the child’s care over to his parents or other relatives.

(3) Welfare Reports [22]

4.18 Overall, welfare reports were ordered in 27% of cases under the 1971 Act and 3% of those proceeding under the 1978 Act, that is in 14% of the total number of cases. It is noticeable that a report was available in 15 (45%) of the 33 cases involving illegitimate children, and only 10 (18%) of the 56 cases involving legitimate children under the 1971 Act, or, if the 1978 Act cases are included, in 13 cases out of 162 (8%). [23] A similarly striking disparity is apparent when the sex of the custodial parent is taken as the distinguishing factor. Fathers were awarded legal custody in 12 cases and in seven of these a welfare report was available, including all those which involved an illegitimate child. Where legal custody was awarded to the mother, welfare reports were available in 18 cases, representing 23% of cases under the 1971 Act. Taken together with the 1978 Act cases, welfare reports were available in 11.5% of cases where the mother had custody.

4.19 In contrast, although a higher rate of adjournment was found by the Wolfson study when the children were living with the husband, they found that welfare reports in uncontested cases were as frequent when the children were living with the wife as the husband.[24] Welfare reports were ordered in 8.2% of cases which were uncontested on custody or access. [25]

B. Divorce Courts

4.20 The great majority of orders covered in this section were made at ‘children’s appointments’.[26] Most commonly these involve an informal and uncontested hearing at which custody of the children is granted to one spouse, [27] with provision for access by the other. However, over the past decade there has been a sizeable and, it seems, [28] a continuing increase in the number of orders granting the parents joint custody of their children. Several factors which have contributed to this trend are considered in Part IV of the Working Paper, where the legal effect and the merits of joint custody are discussed.

4.21 According to the statistical returns of 174 divorce registries, 82,059 custody orders were made in 1985. 77.4% of these orders granted sole custody to the wife, 9.2% to the husband and 12.9% granted joint custody.[29] National statistics do not exist for previous years. However, an impression of past practice may be derived from past research, as set out in Table 6 in the Appendix. It should be noted that, for the purposes of comparison, instances in which divorce courts made no custody order have been subtracted from the results of earlier research. This is because the national returns for 1985 do not record such cases. [30]

4.22 Table 6, therefore, records the number of wife, husband, joint and ‘other’ orders, as a proportion of all custody orders made by the divorce courts in each study.[31] It suggests that there has been more than a threefold increase in joint custody orders made on divorce since the Wolfson study in 1974. The research of Davis, Murch and MacLeod (‘the Bristol study’) in 1980 seems to reflect an earlier time in the evolution of joint orders.[32] Results in 1985 from the courts which participated in the earlier studies (Bristol (2) and Wolfson (2)) indicate that in absolute terms the increase in joint custody has been largely at the expense of wife orders. However, generally,[33] husband orders formed a small proportion of the total number of custody orders at the time of those earlier studies and seem to have been reduced proportionately more in the intervening years.

4.23 The statistics compiled for us by ten divorce county courts provide a sample of the children in respect of whom the three different custody orders are made: orders granting custody to the wife, to the husband and joint custody orders. The results are set out in Table 7,over.[34] These courts, necessarily, are not representative of the national picture; they were specifically selected to provide a range of high and low proportions of joint custody. In this survey joint custody orders formed 21% of all custody orders. Their results are examined in more detail in Part V.

Table 7:
Children Subject to Custody Orders by Age and Sex. (Percentages) n. = 2927

Proportion of children in each category subject to wife, husband and joint orders.

Age of Children [35]

Custody Order







Wife Orders







Husband Orders







Joint Custody







Total Number (=l00%)







[35] The ages of 428 children were not available.

4.24 From Table 7 several propositions may be made:-

1) At all age groups mothers were more likely to be granted sole custody than fathers (on average at a ratio of 10:l).

2) Mothers were marginally less likely to receive sole custody of boys than girls.

3) Fathers were relatively more likely to receive sole custody of boys than girls.

4) The older the child the more likely the father was to be granted sole custody.

5) Joint custody was awarded equally in respect of boys and girls.

6) Joint custody was less likely of children under 6 but was roughly constant at higher ages.

4,25 The evidence from our survey may therefore seem to support the existence of two common beliefs about the award of child custody: that younger children, particularly girls, are better raised by their mothers after divorce and that fathers are more appropriate caretakers of boys (particularly when they are older) than of girls.

4.26 In the interviews we carried out the judges’ response to the prevalence of wife orders varied. Half considered that the statistics merely reflected ‘the normal way of things’, with child rearing duties being impracticable for many fathers. The other half thought that the figures reflected a desirable preference for mothers. Several expressed the view that mothers are better at caring for children and that the father’s role was best fulfilled through employment. Another explained that he also had sympathy for a mother’s claims, having given up a substantial part of her life for the family.

4.27 A fuller picture of children’s residence under divorce courts’ orders can be obtained by adding details of the award of care and control under joint custody to our information about custody orders. Care and control orders are not recorded in the national statistics, but the results of our ten court survey give an impression of court practice and are set out in Part V.

Footnotes Part 4

[I] That is, 14%. Similarly in the county court survey only 8 out of 54 custody orders were made in favour of fathers (15%). Of the 77 magistrates’ custody orders made in the Sheffield survey in 1980 13% were in favour of men: Smart, The Ties that Bind (1984) Table 9.8.

[2] See Section B of this Part.

[3] Paras. 2.2 – 2.5 above.

[4] Para. 1.8 above.

[5] In 1984 the largest number of children involved in divorce were in the 5-10 age group (38%), see O.P.C.S. Monitor FM2 85/1, Table 8.

[6] Para. 4.24.

[7] In the 1978 Act case the children were girls, aged 4, 3 and 1. In the five Guardianship cases they were all legitimate girls aged a) 6 and 4, b) 3, c) 2 and d) 1. The fifth case concerned an illegitimate boy aged 1.

[8] The proportion of younger children involved in our survey is set out in Table 5.

[ 9] Op. cit. Part I11 n. 2.

[10] Ibid., para. 6.4, two of which were joint custody orders with care and control to the husband. However in four more cases the children were divided between their parents and in seven no order as to custody was made.

[11] Ibid., para. 6.5.

[12] Ibid.

[13] Ibid.

[14] Ibid., paras. 6.3 and 6.5. a welfare report was ordered in 66.6% of cases; below, for access. see para. 6.13, below, for access.

[15] See para. 4.2 above.

[16] Op. cit. Part 111 n. 2, para. 6.5. However, in the Sheffield study 55% of the magistrates interviewed thought that it was more natural or better for children to be brought up by their mothers. The remainder referred to the impracticability of fathers caring for children and being employed. It was concluded that “the courts are not giving priority to women but to motherhood”: Smart, The Ties that Bind (19841, p. 213.

[17 ]In one uncontested case in which custody was granted to the mother the child’s residence was transferred from the father.

[18] In contrast to the prevalence of access applications concerning illegitimate children, see para. 2.3.

[19] Op. cit. Part I11 n. 2, para. 5.4

[20] The small number of variation cases yielded by the survey offers no case where such a transfer was brought before the court

[21] Para. 3.3

[22] The statistics in the following paragraph should be treated with some caution because the court returns disclosed a case as ‘contested’ only when it was contested at the final hearing. Since a common reason for ordering a welfare report is the anticipation of a contest, some welfare reports may be attributable to arrangements for a contested case which did not materialise.

[23] The high number of reports in respect of illegitimate children partly reflects the number of contested access hearings: see para. 6.13.

[24] Op. cit. Part 111 n. 2, para. 4.7.

[25] Ibid., para. 4.6.

[26] Children’s appointments are discussed in Part IV of the Working Paper. We include all custody orders made under section 42 of the Matrimonial Causes Act 1973. In addition to divorce, the figures cover a relatively small number of proceedings for nullity and judicial separation. Other orders will have been made subsequent to the court’s declaration of satisfaction, perhaps in a contested case or on an application to vary a custody order made at an earlier appointment, the numbers of which are not differentiated in the 1985 returns.

[27] The spouse will usually be a parent of the child. In six of the courts which took part in our own survey we found that 8.7% of the 1044 children involved were not offspring of the marriage.

[28] In the first half of 1986 the number of joint custody orders as a percentage of the total number of custody orders, increased by over 2% on the 1985 results, with several courts recording over 50% joint custody

[29] In the first half of 1986 the number of joint custody orders as a percentage of the total number of custody orders, increased by over 2% on the 1985 results, with several courts recording over 50% joint custody

[30] See paras. 3.6 – 3.10 for a discussion of the cases in which divorce courts make no order as to custody.

[31] An order may relate to more than one child. Courts are instructed that ‘other’ orders are intended to cover awards of custody to third parties, for example relatives. ‘Others’ presumably also includes custody orders made in favour of one of the child’s parents if he or she is not a party to the marriage being dissolved. Previous studies, unlike the national returns, were able to record orders .where children were split or divided- between their parents. For

comparison with 1985 such cases in the earlier studies have been treated as orders in favour of both the husband and wife (see Table 6 n. 7).

[32] An increase was recognised in Practice Direction I8 February 1980: [1980] 1 W.L.R. 301

[33] With the apparent exception of the court in the Keele study. However in 1985 the same court recorded husband orders at the high proportion of 15.3% and joint custody at only 4.5%.

[34] Excluding orders in favour of third parties. As with the national statistics, the returns only cover orders made by the divorce courts.

[35] The ages of 428 children were not available



5.1 As is explained in the Working Paper, [1] joint custody is usually understood to mean that legal responsibility for taking the most important decisions about the children’s upbringing after divorce is shared, although only one parent has day-to-day care and control and the other has access. In this Part we look at several aspects of joint orders in practice. First, in the light of the considerable regional variation in the proportion of joint orders, we discuss factors which seem to influence their incidence. Secondly, since each joint order is usually combined with an order specifying who is to have care and control of the child, we analyse the award of care and control in our ten court survey.[2] Finally, we turn to consider exercise of the power of courts under the 1971 and 1978 Acts to order that the parent or spouse who is not living with the child retains parental rights and duties jointly with the person caring for the child.

A. Joint Custody

(I) Regional Variation in Joint Custody Orders

5.2 Table 6, described in Part IV, suggests that the number of joint custody orders has increased from around 5.2% of all custody orders in 1974 to 12.9% in 1985. However, the overall increase masks considerable regional variation. Figure F.l in the Appendix shows the proportion of joint custody orders made in each circuit [3] As can be seen, the percentage of joint custody orders made in the Western and South Eastern Circuits is over three times greater than that in the North and North Eastern Circuits, with the other circuits giving middling returns.

5.3 Map M.2 enlarges upon these findings by plotting the returns geographically according to the groups of courts within each circuit. By breaking the circuits into regional groups the map reveals that the incidence of joint custody orders gradually increases from North to South, becoming most common in the Kingston-upon-Thames group of the South Eastern Circuit but remaining steadily strong throughout the whole of the South of the country. Comparison with the proportion of wife orders both graphically and geographically (Figure F.2 and Map M.3) shows that wife orders seem to decline from North to South in similar proportion to the rise of joint custody. Meanwhile husband orders (Figure F.3 and Map M.4) remain remarkably constant, varying within a range of only 2.4% between circuits. [4]

5.4 Despite the regional pattern, there is considerable variation within most of the groups, with a range of 20% in the ordering of joint custody common. Even amongst the Northern courts several high joint custody returns are recorded. [5] Further, the influence of a single court is responsible for bolstering the returns in some groups.[6] The Western Circuit produces three similar group returns, ranging from 18% to 19.7% joint custody. The consistency of their returns gives this circuit the highest proportion of joint custody orders. Although the Kingston-upon- Thames and Maidstone Groups produce high returns, averaging at 21.8% and 18.8% respectively, the South Eastern Circuit’s average is reduced by the Inner London courts and the Chelmsford Circuit, which includes East Anglia.

5.5 The concentration of joint custody orders in Southern areas, particularly those which might be considered relatively provincial, rather than urban, is highlighted by Table 8 overleaf. Table 8, drawing on the groups with the highest rates of joint custody, lists the twenty courts with the highest and the lowest numbers of joint orders. Column 1, the highest

joint custody returns, generally reflects stereotypically Southern provincial areas, mostly in the “Home Counties”. The courts in Column 2 largely serve Inner London and East Anglia.[7]

5.6 Why is there regional variation in joint custody orders? [8] Some joint custody orders are made in every divorce court. Our inquiries suggest that disparity in orders reflects differences both in the courts’ approaches and in the proposals put forward by spouses across the country. The regional pattern masks a consensus amongst the judges interviewed that, where possible, both parents should continue to be involved in their children’s upbringing after divorce. However, from the interviews, three different approaches to joint custody were apparent: promotion of the joint option; a non-interventionist or laissez-faire attitude towards the parties’ proposals as to custody; and scepticism about or discouragement of joint custody. Indeed, several of the judges commented that they felt they were working in isolation: they were not aware of the practice in other courts and, prior to their appointment, usually working as barristers, they had gained little or no experience of children’s cases. The approaches of the judges will now be considered in more detail along with other factors which appeared from the interviews to be influential on the orders made.

(a) Promotion of Joint Custody

5.7 In the courts registering exceptionally high [9] numbers of joint custody orders, which are largely confined to the South of the country, the judges seem to endeavour to promote joint orders. Judges interviewed said that joint custody may be suggested at the children’s appointment in a broad range of cases, even though it may never have been raised with the parties before and even though a previous court had awarded sole custody to one of them. These courts are typically served by one or two judges who have developed a common practice. In contrast, consistent returns are less likely in courts which see a high turnover of judges, many of whom may sit only occasionally or temporarily.

5.8 Several of the courts which make a high proportion of joint custody orders issue informative literature inviting both parents to the children’s appointment and this may include an explanation of, and indicate a preference for, joint custody. Dual attendance clearly enhances the court’s ability to encourage joint custody and, indeed, some courts will only suggest a joint order if both parties are present. From our study, the literature seems to serve its purpose in that in these courts there has been noticeably higher attendance by both parents, sometimes in over 50% of cases.[10] Several courts also encourage solicitors to come to the hearing (and endorse the Green Form for attendance), which may enable additional flexibility at the appointment if, for example, a parent is unsure whether to accept the suggestion of joint custody.

5.9 In the courts we visited where a high proportion of joint custody orders are made the children’s appointment tended to be heard informally in chambers, with the attendance of a court welfare officer. Such facilities depend on the resources available, which vary considerably, and the degree of liaison between the judge and the officers concerned. An atmosphere may be created which is conducive to introducing the option of joint custody. Some courts make use of a short adjournment for the parties to discuss with the welfare officer either their differences or, in some cases, the newly-raised joint option, although the presence or availability of a welfare officer did not always coincide with a high proportion of joint orders. Joint custody also may result from the work of the welfare officer in preparing a welfare report. The officer’s role has become less investigative in some places, more aimed at obtaining an agreed solution. [11]

5.10 The availability and use of more formal conciliation formal conciliation procedures seems to have had a direct influence on joint custody rates. In some courts cases which are likely to be contested are automatically referred to conciliation appointments before a judge or a registrar. Additionally or alternatively the appointment may be before a welfare officer. Although such appointments may affect a relatively small proportion of divorce cases, joint custody seems to be a common result.[12] Families may be also referred to conciliation services independently, for example by their advisers, or over matters such as access or financial arrangements. The option of joint custody may be raised during such referrals. A joint order may be symbolic of the parties taking a positive approach to their post-divorce obligations. However, the availability of conciliation services varies across the country, as, it seems, do the attitudes towards them of the practitioners involved. In the South West, the majority of the small sample of solicitors interviewed were optimistic about conciliation and made regular use of the service. Among the North East solicitors who had experience of the local schemes, opinion was fairly evenly divided. Some warned that conciliation could be dangerous. For example, a parent, relying on the child continuing to live with him and the status quo being in his favour, could give a totally spurious consent to a conciliation attempt with the sole aim of delaying a contested custody hearing. A more common criticism was that conciliation often results in a grudging acceptance of a compromise solution which both parties resent, whereas each would have accepted a solution imposed by the court. Regional difference in attitudes was also found among the judges interviewed, while most saw benefit in the parties having access to conciliation services, those who were more cautious sat in inner city areas or the North.

5.11 The solicitors themselves may be directly influential in promoting joint custody. The majority of the admittedly small number from the South West were quite strongly in favour of joint orders. Some took the view that joint custody should always be given a try, except perhaps in extreme cases of violence, in the hope that, after the initial reaction to the divorce has worn off, the parties will work together in the interests of the children. Others mentioned that joint custody can be a good bargaining tool in helping spouses to reach out-of-court agreement on financial as well as child-related matters. It was also recognised that knowledge of certain judges’ preferences influence their advice to clients.

The requirement of a certificate of satisfaction being obtained prior to the decree absolute of divorce provides an incentive to tailor arrangements to such preferences. Finally, it seems that in some areas there is an increasing amount of co-operation between the parties’ advisers, which may encourage seeking ‘joint’ solutions on divorce.

5.12 The majority of solicitors interviewed who practised in the South West asserted that there had been an increase in the amount of spontaneous interest among clients in joint custody. These solicitors commented that clients are increasingly well-informed and have often made other inquiries before consulting a solicitor, whether at a Citizen’s Advice Bureau, or among divorced friends or simply in consumer advice literature. Some solicitors tended to attribute the recent increase of interest in joint custody to increased media coverage. All the North East solicitors reported that clients rarely show any spontaneous curiosity about joint custody orders. It tends to be raised only by “well educated/ better-informed/middle-class” parents such as “university people”, teachers, executives, prosperous farmers, and so on. Several judges in low joint custody areas added that joint orders are generally only sought by “middle-class” couples.

5.13 The judges who promote joint custody expressly denied that it is a “middle-class option”, yet only one of the courts which recorded a high number of joint custody orders serves a predominantly “working class” area (see Table 8). One judge characterised his area as ripe for high joint custody, given the parents’ “civilised” attitude to divorce and their articulated concern to do the best for their children, taking a continued interest in their development, education and careers. Similarly, he thought, the children of these parents are relatively advantaged and issues such as education (often private) remain live, requiring decisions to be made. In contrast, a judge in an inner city court thought that the joint custodial issues, education and the like, were largely of little relevance to his clientele. Courts’ (and solicitors’) expectations of the divorcing couples they encounter, and their perceptions of what is relevant to those couples, may well play a significant role in the development of joint custody. Similarly important are the differing views on the related question of the merits of joint custody, which are set out in Section 2 below. Social conditions in certain Southern areas, producing more amicable divorcing couples who express interest in their children, may encourage the use of joint custody, although such orders, once established, can be used, in the phrase of one judge, “across the classes”.

5.14 To give an idea of the relative strength of the factors which contribute to high joint custody: even in courts which have developed a willingness to initiate joint custody wherever possible, the proposals put to the court seem to contribute substantially to the high returns. From the estimates of several judges and the records of three other courts where joint custody is particularly high and which took part in our statistical survey, around 50% of joint orders were requested in the petition, the respondent’s answer or in subsequent correspondence with the court. [13]

(b) Laisset-Faire

5.15 It seems that in a much larger proportion of courts the judges are less willing to put forward joint custody unless there is clearly a high degree of co-operation between the parties. In these courts the custodial arrangements suggested by the parties may well prevail unless some evidence of risk to the child’s welfare is detected. It is here that the arrangements proposed by the parties would seem largely to determine the proportion of joint custody orders. The general regional pattern discussed in paras. 5.5 – 5.8 would seem to reflect greater client interest in joint custody in the South, through a combination of the parents’ spontaneous inquiries and the advice received from solicitors and welfare agencies. The judges’ objective of continued parental involvement after divorce is pursued by concern with access arrangements rather than joint custody.[l4] Exceptionally, if the court perceives the parents to be capable of amicable communication with each other, joint custody may be raised. From the interviews it seems that the tendency to intervene in this way may, again, be more prevalent in the South.

(c) Scepticism about Joint Custody

5.16 In several courts where joint custody is below the national average the judges interviewed react with scepticism to parties’ proposals for joint custody. They require to be convinced that sufficient harmony exists between the parents and may order an adjournment for the parties to think over their suggestion. Equally one judge said that the court may dissuade the parties from joint custody, starting from the premise that a joint order is unnecessary, may be detrimental and therefore requires justification. In the North East where joint custody is low, very few solicitors would themselves take the initiative in suggesting joint custody though most had experience of some cases in which it had been desirable for women clients to accept joint custody as a means of avoiding a contested hearing, if not as to care and control then as to the form of the order as regards custody. In such cases, the solicitors had invariably “sold” the idea to the client by explaining away the joint order as “just a matter of words”.

(2) The Argument over Joint Custody

5.17 These diverse attitudes towards joint custody seems to arise from disagreement over the symbolic importance of sole and joint orders. The judges interviewed were, in general, agreed as to the legal effect of custody orders. The majority believed that sole custody does not give the custodial parent a pre-emptive right to make major decisions concerning the child’s upbringing;[15] equally, a joint order did not give the non-residential parent power to interfere in the day-to-day life of the child; but neither order places the parents under a strict legal duty to consult each other over the child’s future. Under a sole or a joint order the final resort in cases of dispute was to the court.

5.18 Only two of the judges interviewed thought that a parent with sole custody is in a different legal position from one with sole care and control under joint custody. One of these judges, who is disinclined to joint custody, considered that the parent with care and control but without sole custody “gives something up”, some freedom of action (which was left unspecified). Another judge, who favours joint custody, felt that, despite Dipper v. Dipper,[16] a sole custody order “must have some effect”. To encourage joint custody, he explains to the parents that a sole custody order vests the parental rights and duties in one of them, whereas under a joint order rights and duties are shared. However, even in the former situation he advises that the custodial parent should consult a non-custodial parent who is interested in the child on major matters. He adds that the non-residential parent may be in a stronger position under a joint custody order if the child needs medical treatment which is a “borderline emergency”: joint custodial status may facilitate the authorising of action. This explanation probably encourages joint custody being accepted by parents anxious to do the best for their children, although the judge is loath to pressurise them.

5.19 Despite general agreement as to the legal effect of joint custody, during some of the interviews with judges (and in some of the leaflets prepared by the courts and welfare services) the parties to a joint order were assumed to be under a duty to consult each other over major decisions affecting the child’s upbringing. As one judge put it, that is the reason for the order. Hence understanding of a joint custody order’s exact legal effect may become somewhat distorted. This distortion is reinforced by the different practical consequences of the two orders; for example, some schools require proof of custodial status before issuing reports on the child’s progress. Such practical considerations also weigh with some courts in deciding whether to make a joint or sole order.

5.20 The main argument over joint custody, however, concerns its symbolic effect. Amongst the judges, proponents consider that joint orders have the value of demonstrating to both parents and the child that the non-residential parent (usually the father) has a continuing parental role. His concern for the children is recognised. His involvement in the child’s upbringing is encouraged by the ‘joint’ status and his sharing of responsibility may assist the residential parent by providing a wider network of support. The lower status of an ‘access’ parent is relatively discouraging to the party who has lost custody. Equally, in the interviews carried out with solicitors, it was universally believed that clients equate sole custody with “complete control”, subject to well known exceptions such as access and change of a child’s surname. Moreover, clients are said to assume that a custody order is final and irrevocable. As one solicitor put it, the sole custodial parent is perceived as having the right to lay down conditions and make the rules for the future.

5.21 The main objection which ‘sole custody courts’ have to joint custody is fear that a joint order will contribute to discord. Typically, the judges referred to a risk of interference with the residential parent which could have deleterious consequences for the child; a joint order may be seen as ‘giving up’ some freedom of action. The child could fall between two parents if neither has clear responsibility for him. One judge stressed that in his inner-city area the best which could be achieved was to defuse violence and “to refrain from stirring up the hornet’s nest”.

A joint order would invite further conflict and bitterness, “another stick for beating”; only in exceptional cases would a degree of co-operation exist to countervail that risk. However, no judge recalled that a noticeable number of applications were made to vary joint custody orders to sole custody, more to vary in favour of joint custody. Only one judge thought that applications for the resolution of disputed matters (for example over the child’s schooling) were more than “rare”, and these could arise equally following a sole or a joint custody order. Moreover, the solicitors interviewed said that, in their experience, joint custody orders did not tend to store up problems for the future except in cases where such an order had been imposed as a compromise solution against the wishes of the parent who cares for the child.

5.22 Where continued involvement of both parents is desirable the judges in ‘sole custody courts’ stress that a sole custody order does not give pre-emptive rights and concentrate on encouraging access. The non-custodial parent’s role depends on his access and the relationship he can build with his child through such contact. His influence on the child is through liaison, not rights. The judges’ argument runs that a joint custody order will not assist the practice of access; whatever the psychological effect of joint custody (and that equally may be detrimental through encouraging interference) it will not overcome the many factors which contribute to the waning of contact with the non-residential parent. Similarly it was, a common view amongst solicitors that the existence of a joint order makes little impact: either the parents are able to co-operate (in which case many solicitors took the view that a joint order is unnecessary) or they are not (in which case joint custody will not work). Their most severe criticism was directed to the use of joint custody as a kind of consolation prize in order to resolve an argument over who is to care for the child.

5.23 A further reason given for doubting the benefit of a joint order in all but the most amicable of cases is that the desire for a joint custody should be genuine (that is, from the parties’ own free decisions). Hence some judges were unsure about the desirability and efficacy of raising joint custody at the children’s appointment, seemingly foisting it upon the parties, at a time when there is great pressure to accept. This argument weighs heavily with the courts which adopt a relatively ‘laissez-faire’ approach. The judges who do raise joint custody all said that the parties in practice tend to accept their suggestion.

5.24 One judge said that he is always sceptical of a father who seeks a joint order when the mother would prefer sole custody. It was common ground among solicitors in both the North East and the South West that the idea of joint custody is invariably raised by husbands who are not living with the child, rather than by custodial wives. On the whole, it was said, wives prefer to have sole custody, even in cases where they say they are quite willing to consult the father about the children’s upbringing. It was said that the idea of joint custody makes wives uncomfortable, as if it perpetuates the husband’s hold over them, and that some mothers oppose joint custody out of fear of a future variation application, as if it somehow gave the father ‘a foot in the door’. Thus, many solicitors were of the view that mothers are most likely to agree to joint custody only in order to prevent a full hearing in a case which they think they might lose. If there is no chance of the father taking over care of the children, joint custody will normally be opposed. However, where there has been an unusually ‘civilised’ divorce, wives may be willing to agree to joint custody.

5.25 Several judges commented that it is difficult to explain the effect of a joint custody order. If a non-custodial parent is concerned about a particular issue a specific undertaking could be taken. Similarly, most solicitors referred to the difficulty they experience if they are obliged to try and explain the effect of a joint custody order. They did not believe that clients were able to appreciate any distinction between custody and care and control. I t was the general view that the majority of clients have only a very limited conception of parental rights and would find it difficult or impossible to grasp the full implications of a joint order. After all, as most solicitors pointed out, in the majority of cases there will not be a great deal to consult about: parents will usually share the same religious views, or lack of them, and there is generally not a great deal of choice or decision-making in matters relating to education. Thus, the solicitors themselves found it very hard to ascribe any practical significance to joint orders. Most commonly, joint custody was described as ‘mere playing with words’ if it is clear that the real burden and responsibility of child care is going to fall entirely on one party’s shoulders. Solicitors tended to feel that such a parent has a right to a sole custody order. Thus, some considered that joint orders should be reserved for cases where parents’ occupations (such as teaching) make possible a level of access almost amounting to shared care (or, perhaps, where children are split between their parents with mutual rights of access).

5.26 In conclusion, there is disagreement over the legal effect and the merits of joint custody orders. Whilst most of the judges agreed that a joint order has the same legal effect as a sole order, some of them thought that divorcing parents equated custody with care and control, which contrasts with solicitors’ belief that their clients assume custody to give virtually complete control. Reservations expressed about joint custody caution some judges and solicitors against encouraging parents to accept a joint order. It seems that variation in courts’ statistical returns may be attributed in part to uncertainty about the effect and merits of the range of orders available as well as to real or perceived differences amongst families and in social conditions. A need is apparent both for clarification of concepts and for research into the practical efficacy of joint custody orders in a broad range of circumstances.

(3) The Criterion Applied by the Court

5.27 The differing opinions concerning the merits of joint custody are reflected in the standards applied in assessing whether such an order should be made. Although the paramountcy of the child’s welfare is the sole legal criterion for the court’s decision,[17] joint custody is often assumed to be in the child’s interests provided that the requisite degree of co-operation exists. The standard of a ‘reasonable prospect of cooperation’ [18] generally remains the touchstone. However in practice this may be construed as ‘absence of overt hostility’ or in the phrases of the judges: “if the parties are not spitting at each other” or “there are no daggers drawn”. Some judges may seek to exhort communication between the parents where it has been lacking. Moreover, several thought that if it was in the children’s interests a joint order could be made following a custody dispute. Although the parents may not seem to be co-operative, the joint order may put some positive pressure on the custodial parent.

5.28 A less optimistic construction of the formula of co-operation is used by judges who require to be satisfied that there are no potential “bones of contention” and that there is real evidence of the parties being able to get on together for the sake of the children. One judge remarked that joint custody seemed to arise most frequently when the divorce was by consent after two years’ separation. Other judges specifically added adultery cases to consensual divorces as often resulting in joint custody.

5.29 Hence the concentration of the court may fall on the parent-parent relationship when deciding on joint custody. Nevertheless, most of the judges also thought that it was important for the non-residential parent to be physically involved in the child’s upbringing through access visits. There should be a real interest in and fondness for the children. Lack of access would have to be for good reason, for example, work related absence. As one judge put it, he would not make a joint order “in name only”. Although some judges may use joint custody to encourage involvement in the child’s life, an order simply to give another ‘a say’ or as a consolation prize would only cultivate resentment. [l9] However several other judges thought that, exceptionally, a joint custody order may be made to mollify a parent who is bitter having lost care of his children, provided that such an order was not contrary to the children’s interests. Another thought that joint custody may be appropriate if the father was paying the children’s school fees.

(4) The Award of Care and Control: Children’s Residence under Joint Custody Orders

5.30 Although there is a high degree of regional variation in ordering of custody, is there also a difference in which parent assumes child rearing duties? The national statistics do not indicate to whom care and control is awarded under joint custody orders. However our ten court survey provides fuller information about joint custody orders made in respect of 612 children. In this survey joint custody formed 21% of custody orders. The courts were selected mainly for their similar results to those in which interviews had taken place. We aimed to obtain a large sample of joint custody orders while also using courts with both high and low returns. As can be seen from Table 9, the highest proportions of joint custody orders were found in Guildford, Exeter, P.R.F.D., Wandsworth and Aldershot. Lower proportions were recorded in the North, particularly in Manchester, and in Bow. The awarding of care and control under joint custody is set out in Table 10.

5.31 This table shows that wives received care and control five times more often than husbands. In courts in which wife orders (custody to the wife) were relatively low the proportion of joint custody orders giving care and control to the wife was high (Guildford, Exeter and P.R.F.D.) [20]. A lower proportion of care and control orders in favour of wives was found in Altrincham, Bow, in which a substantial proportion of shared care and control orders were made, and Durham, where the number of joint orders was too small to be significant. In these courts the proportion of orders giving sole custody to the wife was among the highest. This indicates that the respective claims of wives and husbands, which may seem to be treated differently in terms of custody, are balanced by the award of care and control. This conclusion is reinforced by Figure F.4 which presents the number of cases in which custody and care and control are granted to the wife. The aggregate return for each court produces a remarkably consistent return of wife-residence in around 89% of cases.

5.32 Wives were granted care and control of a roughly equal proportion of boys and girls. Husbands were awarded care and control of 18% of boys and 15% of girls who were subject to joint custody orders. Only 10% of these children who were under six were placed in the care and control of husbands, in contrast to 20% of the 6-10 age group. These observations about the age and sex of children under care and control orders are comparable with those made in respect of sole custody orders in para. 4.24.

(5) Shared Care and Control

5.33 Table 10 also indicates that in the vast majority of cases care and control of the child was granted to one parent. Care and control was not dealt with in only nine (or 1.6%) joint custody orders, which represents 0.3% of the number of children in our survey. In such cases care and control simply may have not been in issue, for example because the child was mainly living away from home, at school, or the parties may have been expected to share it. In four cases an order for shared care and control was made. The combined total of joint custody orders which, nominally, may have intended that the child’s residence be divided between both parents was only 13. Of these 13 orders, eight were in respect of girls and ten were of children aged over 5. Over half of the orders were in respect of children aged 11-15.

5.34 The judges we spoke to were all cautious about not making any order as to care and control or ordering that it be shared. Several believed that such a joint arrangement would be positively dangerous.[ 21] Another wondered if he had power to make no order. Nevertheless, even in courts with low joint custody rates, most of the judges recalled having met cases with sharing arrangements. They may occur, for example, when parents continue to live in close proximity, perhaps in a divided-up house, or where the child moves between them regularly. Another Quite common example occurs where a child is at boarding school and his holidays are split between the parents.

5.35 Concern about a sharing arrangement stems from the risk that the child may have no primary caretaker, in the sense of a person who is solely responsible for his welfare and with whom he has a secure “base camp”. With older children they may, by moving around, lose their sense of identity and break continuity of schooling or friendships. The child, it is feared, may fall between two homes. The judges did, however, recognise that parents may put into practice a sharing arrangement. following an order which nominally gives sole care and control (or custody) to one of them. Indeed one judge said that such orders are the usual request even in pure sharing cases. He felt there was value, in all cases, in one parent being nominated as the responsible one, if only to seek to avoid later disputes: sharing merely “stores up future problems”.

5.36 It seems that some judges’ caution about shared care may go to the length of ordering a welfare report or even refusing the declaration of satisfaction until arrangements are changed. Others are relatively fatalistic and will (perhaps reluctantly) make a custody order and declare satisfaction. The more typical form of sanctioning shared care and control may be to order simply “joint custody” or, even, to make no order at all.

5.37 Several judges thought the sharing of care and control may be a “relatively middle-class option” on account of the extra resources required to make it work. However another suggested that in his experience an order for sharing was most frequent in cases where the father was unemployed and the mother worked part-time. And another judge recalled a case of two nurses who shared care and control according to their shift work. He thought that geographical proximity, the capacity of both parents and the child’s attitude were particularly important in cases of shared care.

(6) Other Orders

(a) Orders for Care and Control Alone

5.38 In respect of a further 13 children an order for care and control alone was made, with no order for custody. The legal effect of this is similar to a joint custody order, and hence, the results have been incorporated into Table 10 [22] The care and control orders were made at Aldershot, P.R.F.D. and Wandsworth; only three of them gave care and control to the father. Of these thirteen children who were subject to orders for care and control while no custody order was made, seven were aged 11-15 and eight were girls. As for joint custody, it would seem that more of such orders are made in respect of older children although four were made in respect of under-5’s and, in any event, the total is small.

(b) Divided Custody

5.39 Returns from nine courts enabled us to find that 83 (or 3.1%) of children out of 2,701 children in respect of whom a custody order was made were split up between their parents.[23] Figures ranged from 8.9% (Middlesbrough) and 7% (Altrincham) to 0 (Durham). Of the 83 children who were separated, 69 were over 5 and the likelihood of division of the family increased with age. The lower rate of splitting up of younger children seems to reflect judicial reluctance. Further, older children are clearly more able to determine for themselves where they will live and to maintain relationships without sharing a home.

(c) Split Orders

5.40 None of the judges interviewed recalled having made an order giving custody to one parent and care and control to the other. Several could not see the use of such an arrangement in the normal case. One was aware of the Court of Appeal’s disapproval of split orders [24] but another thought that they might be useful in a contested case.

B. Orders for the Retention of Parental Rights

5.41 In proceedings under the 1971 and 1978 Acts the court does not have power to award joint custody. Instead it may order that a spouse or a parent who is not granted legal custody retains all or specified parental rights and duties jointly with the person granted legal custody.[25] During the period of our domestic court survey, only two such orders were made, both in the same court. These orders provided (a) for the retention (in relation to girls aged 15 and 14) of all rights except actual custody; and (b) for the retention (in relation to a boy aged 3) of rights in respect of the child’s education. Both orders were made in proceedings under the 1978 Act.

5.42 Orders for the retention of parental rights are the closest equivalent to joint custody available in domestic courts, but they appear to be rarely made. Solicitors in the area of the court which had made the orders recorded in our survey reported that such orders are not infrequently made by that court. However, most solicitors had never been involved in any case where such an order had been made, and had never considered recommending a request for one. The device by which the court first grants legal custody to one parent and then ‘claws back’ rights to be retained by the other was regarded as too tortuous a process for the average magistrates’ court user to grasp. It was said that even on the unusual occasions when such orders are sought, magistrates dislike making them. In particular, there was said to be a strong reluctance to order the retention of all rights except actual custody. Such requests for ‘general’ orders will usually be met by an insistence that the solicitor provide a list of specified rights, at which point the idea may be dropped altogether or the solicitor will furnish a list of all the parental rights that immediately come to mind. Even where the parties are agreed in seeking such an order, the court may discourage the idea, taking the view (shared by some solicitors) that if parents can work together an order is unnecessary but that, if they cannot, it is inappropriate (an attitude which two solicitors criticised for its insensitivity to the psychological needs of parents and children).

5.43 Other instances of such orders mentioned by the solicitors in the North East included an order in favour of the (ex-cohabitee) father of an illegitimate child where there had previously been problems in ensuring that the child received proper medical treatment;[26] and an order relating to matters of education and religion in a case where the father was a practising Roman Catholic but the custodial mother was not. In a third case, a non-custodial mother’s request for a general order was refused in favour of an order for the retention of specified rights relating to education, religion and serious medical matters. In the South West group, three solicitors had had experience of cases where orders for the retention of parental rights were made. One Plymouth solicitor had seen general orders made and, indeed, had not appreciated the possibility of orders in relation to specified rights only. Another Plymouth solicitor whose only request -for a general order – had been met with an insistence that the desired rights be specified, expressed the view that it was undesirable and artificial to draw up a list, but a third solicitor considered that a specified list is preferable to a general order so that the custodial mother knows exactly what her position is. This solicitor finds that such orders are helpful, but are a poor substitute for joint custody orders, of which he is strongly in favour. In his experience, such orders might commonly specify decisions on education, religion, residence and, as in one case he had dealt with, ‘general moral welfare’.

5.44 Some magistrates had never encountered a request for an order for the retention of parental rights, and were unaware of their power to make one. Others had encountered such requests, generally from middle-class parents seeking, in effect, joint custody. Specific cases recalled were: one where the application was for a general order and both solicitors opposed the bench’s request that a list of specified rights be drawn up; one where the application related to a child suffering from a bone disease, whose father was moving out of the area and wanted to be sure of receiving all medical reports (regarded as a “wholly appropriate” case for an order); and one where the court ordered a welfare report on an agreed application for specified rights because it was not satisfied that the parents appreciated what they were agreeing to. In that case, the court ultimately made the order requested but feared that it would lead to conflict.

5.45 In the three month survey of ten county courts, where 54 children were made subject to custody orders under the 1971 Act, there were four cases in which an order was made for the retention of parental rights, two of which were made by consent. All of the orders were made when mothers were granted legal custody. Three of them were made in courts with high joint custody returns: P.R.F.D. and Aldershot and Farnham. From our interviews it seems that because of the extreme degree of breakdown of relations in some of the cases which come before the county court as emergencies [27] there is often no question of parents co-operating over the upbringing of their children.

Footnotes Part 5

[1] Paras. 2.34 – 2.50 and 4.35 – 4.43.

[2] Thanks are due to Richard Hawkings and Katharine Matheson of the Law Commission, for their assistance with the statistics in this Part, and Mr. John Haskey of O.P.C.S., for his helpful advice on an earlier draft.

[3] There are six circuits, split into groups, which are plotted in Map M.1. The volume of custody orders made in each circuit as a proportion of the total in England and Wales in 1985 was: South Eastern (SE) 30%, Midland and Oxford (MO) 19%, Western (W) 15%, North Eastern (NE) 14%, Northern (N) 14% and Wales and Chester (WC) 8%.

[4] In contrast, joint custody varies by 13% between the Northern and Western Circuits, and wife orders by 13.1%.

[5] At, for example, Penrith (21.8%) and Hartlepool (20.4%).

[6] Cambridge increases the Chelmsford Group return by 38, Edmonton the London Group by 4% and Oxford the Birmingham Group by 8%.

[7] In 1985 there was also a large range in the returns from the courts which had been considered in the Wolfson study: from Guildford 32% joint custody to Newcastle 4%.

[8] One factor which may contribute to the results -is a number of applications by a parent and a step-parent to vary the custody order made on the former’s divorce to joint custody. However the latest figures record that only 44 step-parent adoption applications were refused because the court considered a custody order would be more appropriate: Judicial Statistics Annual Report 1983 (1984) Cmnd.9370, Table 4.3. Moreover, although one study found that the number of applications for step-parent adoption greatly declined following the Children Act 1975, it was concluded that “step-parents deflected from adoption did not appear to find the alternative (of joint custody) acceptable”: Masson, Norbury and Chatterton, Mine Yours or Ours (1983), p. 85.

[9] That is, around 30% of custody orders and above.

[10] A similar finding was made in Dodds, “Children and Divorce” [1983] J.S.W.L. 228, 230.

[11] See para. 4.8(b) of the Working Paper and the warning of Ewbank J

[12] See the Wolfson study, op. cit. Part 111 n. 2, para. 6.6. See also Parkinson, Conciliation in Separation and Divorce (1986), pp. 96-101, 142 and 190.

[13] A similar result was found by the Wolfson study, op. cit. Part I11 n.2, paras. 5.6 and 6.6.

[l4] See para. 5.22.

[15] Following Dipper v. Dipper 198ll Fam. 31.

[16] Ibid

[17] Hurst v. Hurst Cl9841 F.L.R. 867.

[18] Jussa v. Jussa [I9721 1 W.L.R. 881.

[19] In contrast to the dicta of Ormrod L.J. in Caffell v. Caffell [I9841 F.L.R. 169, 171.

[20] The Principal Registry has both High Court and county court jurisdiction in matrimonial matters, which are not distinguished in our returns; see also Part IV n. 29.

[21] See & v. & (1986) The Times, 28 May 1986.

[22] See para. 2.37 of the Working Paper.

[23] In the Wolfson study 4.9% of 406 orders made by divorce courts were for divided custody: op. cit. Part III n. 2, Table 33.

[24] For example in Dipper and C. a.f fel, op. cy. nn. 14 and 18 respectively, and Williamson v. Williamson (1986 16 Fam. Law 217.

[25] Except the right to the child’s actual custody: 1971 Act, s. IlA(1); 1978 Act, s. 8(4). See also paras. 2.45 2.48 of the Working Paper.

[26] Although in one sense such a father could not “retain” parental rights, which he had not previously held; see section lIA(1) of the 1971 Act and para. 2.46 of the Working Paper.

[27] See para. 2.15 above.



6.1 The statistics presented in this Part indicate that in the great majority of cases a custody order is accompanied by an access order in favour of the parent or spouse who is not living with the child. Details (or ‘definition’) of access are contained in relatively few orders, the parties themselves generally being expected to work out their own arrangements. The high proportion of access orders made in all the proceedings we studied suggests a belief that the continued contact of the child with his parents and others who have fulfilled the role of a parent in his life is in the child’s best interests. [1]

A. The 1971 and 1978 Acts

6.2 In our study of proceedings under the 1978 Act, 106 custody orders were made, accompanied by 102 access orders. Under the 1971 Act in domestic courts there were 80 access orders following 83 custody orders, in addition to three orders simply for access and three other cases in which access was applied for and refused. Therefore ten cases under both Acts did not involve an access order, in only one of which was custody awarded to the father. [2]

6.3 We have more detail concerning applications for access under the 1971 Act: of 72 access orders which were made in favour of fathers [3] only 22 were the subject of a formal application or cross-application. 20 of fathers’ applications concerned illegitimate children. Whilst eleven access orders were made in favour of mothers, in only one case did a mother apply for access and she was refused. Eight of mothers’ access orders were made in respect of legitimate children. Hence, it may be that the magistrates themselves raise the issue of access.

6.4 In 15 cases (7.5% of the total sample) there was a contested hearing over access, that is more than twice the number of custody disputes. Three of these cases were heard under the 1978 Act, two of which resulted in access being refused, the other in an order for reasonable access. Of the other 12 cases under the 1971 Act, ten concerned illegitimate children. These cases resulted in five orders for defined access, three for reasonable access and four in which access was refused. A welfare report was available in nine contested access hearings, all under the 1971 Act. Defined access was awarded in a further five cases, all of which were uncontested, four of which were under the 1971 Act.

6.5 All the magistrates interviewed were strongly in favour of access to children by non-custodial fathers following marriage breakdown, and were quite satisfied with the standard form of order used in proceedings under the 1978 Act, in which provision for reasonable access is automatically included unless some contrary direction is given. [4] Most would wish to encourage mothers to foster and facilitate continued contact between the children and the other parent. Many of the solicitors commented on the high level of scepticism amongst mothers in relation to fathers’ requests for access. It was the general policy of solicitors to advise mothers to agree to generous access on the basis that if the father’s request is not genuine access will wane; if the father’s interest is genuine access will usually be of considerable benefit to the child.

6.6 Magistrates had a more cautious attitude towards requests for access by fathers of illegitimate children. Most magistrates considered that access could be a good thing, provided that it was ‘feasible’ in the particular case and the father was shown to be sincere and genuinely concerned for the child, and not merely using the application as a means of ‘getting at’ the mother. However, most also expressed one or more of a number of specific reservations. Two magistrates (interviewed jointly) considered that they may be prejudiced against access on the basis that it is likely to be better for each parent to go his or her own way; that the mother will be more likely to marry and have other children – and that her life will generally be easier – if there is no access, and that this outcome is likely to be ‘better all round’ in the long run. Two more (also jointly interviewed) considered that they were generally favourable to fathers’ access applications, but also mentioned the need to consider the mother’s feelings and take care not to foist upon her a relationship which she does not wish to continue and which may interfere with the child’s welfare and with the mother’s prospects of marriage. Several magistrates remarked that a father’s application for access is in fact often prompted by the mother’s marriage to a man who will accept her child. Access is most likely to be ordered if there has been a fairly steady relationship between the mother and father. It was also observed that in affiliation applications which are not combined with an application under the 1971 Act, it is often obvious that the parents are still seeing each other.

6.7 The county court survey provided two results similar to those found in the domestic courts for proceedings under the 1971 Act. Although the percentage of access orders made in combination with a custody order was relatively low, it represented the majority of instance. [5] Of 46 custody orders in favour of mothers, 34 involved access to fathers. Out of 8 cases in which custody was granted to fathers, in 5 access orders were made. Hence, access was ordered in conjunction with 72% of custody orders. Secondly, all of the orders simply for access were in favour of fathers of illegitimate children.

Grandparents’ Access

6.8 In limited circumstances grandparents may apply under the 1971 or 1978 Acts for access to their grandchildren.[6 Most solicitors had experience of consultations by grandparents regarding rights of access, but few had actually handled proceedings on the matter, whether by intervention in a divorce or by means of an application under the 1971 or 1978 Acts [7] Nevertheless, the possibility of proceedings is discussed and grandparents want to know what their rights are. The general view was that grandparents do not persist or, possibly, armed with the knowledge that proceedings can be brought, manage to reach agreement with

custodial parents. It was said that custodial parents never enauire about grandparents’ rights unless proceedings have been threatened, but non-custodial fathers may ask about their parents’ position. The solicitors’ experience (albeit based on a very small number of cases) was that grandparents do not fare well in proceedings: courts (and welfare reports) are not inclined to go against a custodial parent’s wishes and are reluctant to overload a case with orders.

6.9 A majority of magistrates had dealt with grandparents’ applications for access, arising from a wide range of situations. Thus, applicants had included parents of a deceased parent where the son-in-law had remarried; and grandparents who had effectively brought up the child for some time and whose daughter or daughter-in-law was seeking to ‘break away’. One magistrate recalled a case where a father’s application for access to his illegitimate child was refused but his mother’s application was granted: the court anticipated that the father would see the child in those circumstances and were not averse to that probability.

In theory, most magistrates would take a favourable attitude towards grandparents’ access applications, because of their view that children need all the help and support they can get from the extended family. Nevertheless, two felt that they would view applications with caution and suspicion, and the general view was that a formal order would be a last resort and that much would depend on the nature of the parental objection to access. Two magistrates considered that an order would be most likely in the case of an application by paternal grandparents where the father was not on the scene: where, for example, the grandparents were seeking to establish access effectively on his behalf during his absence abroad.

B. Divorce

6.10 In 1985 65,333 orders were made granting or defining access by the divorce county courts, of these 5,757 (or 9%) were orders defining access. Access orders therefore amounted to 80% of the total number of custody orders. The returns may reflect a substantial increase in access orders since the previous studies, for example the Wolfson study which found access orders in around 53% of the 404 cases in which the divorce court made a custody order.[8] However, the 1985 results include cases in which more than one access order was made, for example following an application to vary access. Variation may be required because of a general reluctance to order anything more precise than ‘reasonable access’ in the first instance so that later definition may be sought. And, as one judge pointed out, defined access orders themselves may become quickly out of date, so that further variation may be needed.

6.11 However the individual court survey which we undertook indicates that the initial ordering of access is high. The Wolfson study found much regional disparity in the ordering of access, [9] whilst our survey found a consistently high return of over 80%, as is shown by Table 11 in the Appendix, which records the proportion of access orders made following sole custody orders in each of the ten courts. Although the aggregate proportion was the same following wife and husband custody orders, there was quite a wide fluctuation in ordering access when sole custody was granted to the husband. One hypothesis for this variation is that when a mother’s access is possible, and in the children’s interests, the courts are more likely to award her sole or joint custodial status.

6.12 When joint custody was ordered the percentage of access orders made was 90%, as shown by Table 12. One judge commented that access does not tend to be a problem in joint custody cases (perhaps by definition of the type of cases involved). As has been described earlier [10] it is axiomatic in most cases that access is taking place before joint custody will be ordered.

6.13 From our interviews it would appear that the high percentage of access orders reflects the concern of the judges that access should be encouraged. All the judges make a point of inquiring as to the child’s contact with the non-residential parent, and several assume that an order will be made in each case unless there is a reason not to do so. If the custodial parent is recalcitrant over access, the court will stress the importance of contact for the child’s welfare, as well as a matter of the child’s entitlement. Several judges also talked about the non-custodial parent’s “entitlement”. When the non-custodial parent is out of touch with the child it seems to be common for an access order to be made to encourage resumption of contact. Several judges take active steps to resuscitate access, for example by adjourning the children’s appointment, perhaps for the non-custodial parent’s attendance or for the welfare officer to visit him.

6.14 The majority of judges said that an order for reasonable access would be made irrespective of the child’s age, although several took the view that if the children were older such an order may be unnecessary. By ‘older’, one judge thought that 12 years old was the average cut-off point, although it may be even. less if the child’s siblings were over that age.

6.15 A second factor which may have increased the access returns is a change in the form which is used when a custody order is made at the same time as the decree nisi. This form (since February 1985) includes a provision that whoever is specified in the allotted space “do have reasonable access” to the children.” Hence the presumption in each case is for reasonable access. Previously, provision for access had to be written into the divorce form by the clerk, whereas in the magistrates’ courts’ form the access provision had to be deleted. The Wolfson study noted a high percentage of access orders in magistrates’ courts in 1974. [12] The change from an opting in to an opting out in divorce courts may have influenced the completion of the forms by the clerks. At P.R.F.D., however, where old forms were still in use during our survey period, the proportion of access orders was as high as in other courts.

6.16 The judges interviewed explain reasonable access as “reasonable to all the parties, including the child”, “what you agree” or “it depends on your common sense”. However one judge did not favour orders for reasonable access on the ground that they may often “mean no access at all”. He deliberately gives the parties guidance on the optimal arrangements, believing that to establish a certain structure assists, as far as possible, in the elimination of friction and the exercise of access. He prefers that there be fortnightly staying access, except for young children for whom staying may not be possible and teenagers for whom a monthly stay may be more realistic. In this court, therefore, there is a relatively high proportion of defined access orders although, as with custody, the nominal content of orders is not always seen as particularly important; a reasonable access order may mask a more defined arrangement which has been made. Another judge who thinks in terms of similar guidelines said that he is unlikely to make an order which specifically defines access. Indeed the terms of the order itself may depend on the work of the clerk rather than the words of the judge.

6.17 In 1985 defined access formed 9% of all access orders. [13] Courts with particularly high rates of definition were among those with the highest joint custody rates [14] High returns of defined access may therefore reflect a relatively ‘active’ approach to the children’s appointment in those courts. Otherwise it seems that access is defined largely in cases of dispute.

6.18 Orders refusing access formed 3.3% of all access orders made.[15] The courts which have relatively high rates of refusal also seem to be more likely to define access. These courts may pronounce on the matter of access in each case. Variation in the number of orders refusing access may, however, reflect different interpretations of the new form. Either a striking out of the provision for access or simply leaving the space provided empty may be interpreted for statistical purposes as a ‘refusal’.

Footnotes Part 6

[1] See Part IVB of the Working Paper.

[2] This indicates that a higher proportion of access orders was made by the domestic courts than was found in the magistrates courts which had been used bv smuses in Wolfson studv Drior to their divorce. In that study 13.2% oi cases involved no provision for access, op. cit. Part 111 n. 2, para. 5.8.

[3] Mothers received custody in 71 cases and fathers’ access was ordered in 69 of these; see Table 4 in the Appendix.

[4] Magistrates Courts (Matrimonial Proceedings) Rules 1980, Form 13.

[5] One hypothesis for a lower return is the number of violence cases involved: see para. 2.15.

[6 ] 1971 Act, s. I4A, 1978 Act, s. 14. Working Paper.

[7]No record is kept of access orders in favour of grandparents on divorce; and in our surveys no orders were made under the 1971 and 1978 Acts in favour of grandparents.

[8] Op. cit. Part 111 n. 2, para. 5.7.

[9] E., Table 36.

[10] Para. 5.29.

[11] Form D61.

[12] Op. cit. Part 111 n. 2, para. 5.8.

[13] Similar proportions were found in the Keele and Wolfson studies: op. cit. Part I11 n. 2, at p. 200 and para. 5.7 respectively.

14] Barnstaple, Truro, Slough, Cardiff, Cambridge, Edmonton, Tunbridge Wells and Reigate.

[15] Hitherto orders refusing access have not been counted as ‘access orders’




7.1 This Part examines the available information on orders giving custody to persons other than the child’s parents (or the parties to the marriage before the court, if different), committing the child to care or placing him under supervision.

A. Custody to Non-Parents

7.2 In the great majority of cases custody of a child on divorce is granted to one or both of the spouses involved. Most of these spouses will also be the child’s parents [1] although some cases, for example the divorce of a parent and a step-parent or of private foster parents who have treated the child as a child of their family,[2] may result in custody being awarded to a parent of the child who is not a party to the marriage.

7.3 Lord Chancellor’s Department figures indicate that, in 1985, divorce county courts made around 400 orders giving custody to third parties, which represent 0.5% of all custody orders made. It is not clear whether this figure includes orders in favour of parents who were not parties to the marriage being dissolved..[3] In one third of the divorce courts no such orders were made and in the remainder of courts the returns were evenly spread. Courts which made more than ten orders in favour of third parties were at Bristol, Oxford, Derby, Nottingham and Scunthorpe. Relatively large returns were also found in several Northern cities: Liverpool, Leeds, Manchester and Lincoln.. In our ten court survey only one such order was made.

7.4 The interviews with judges revealed that intervention in divorce proceedings is usually by relatives of the child, particularly grandparents. No judge had heard of an individual being refused leave to intervene. [4] Several judges mentioned that young grandparents are increasingly involved in taking care of their grandchildren. However, the extended family’s role in child rearing is not reflected in the number of custody orders made to third parties. The judges commonly referred to supportive relatives who back one of the parents’ claims for custody and some sole and joint custody orders are made on the basis of continued family back-up. It may be that relatives or friends only seek custody when they have fallen out with the children’s parents or where the parents are unfit to take responsibility. Even then the judges may be reluctant to remove the children from the custody of both their parents, preferring to grant only care and control to the interveners. In our study we came across two joint custody orders where care and control was awarded to grandparents, one with custody jointly to the interveners with the father and another with custody to both parents.

7.5 In our surveys of proceedings under the 1971 and 1978 Acts we found no evidence of custody being awarded to a third party. The magistrates interviewed recalled only a small number of cases in which such an order had been made, in most cases for a grandmother but in one case an aunt. Such a course had generally been taken with the acquiescence of the child’s parents.

B. Care Committals

7.6 A child may be committed to care in family proceedings if there appear to be “exceptional circumstances” making it impracticable or undesirable for the child to be entrusted to either of the parties to the marriage [5] or to any other individual”.[6] The effect of such an order is that the child may not be removed from care, unless discharged, until he is 18, although parental rights are not transferred to the local authority.

7.7 D.H.S.S. figures record the number of admissions to care each year. Until the most recent figures (1984), the majority of children who were admitted to care following orders in family proceedings were admitted after divorce proceedings. It seems that the number of such admissions has fallen in recent years, while the wardship court has made an increasing number of committals.[8] D.H.S.S. figures record that, in 1984, 330 children were admitted to care of English local authorities under section 43 of the Matrimonial Causes Act 1973. In 1982 the figure was 529. Admissions of wards of court reached 235 in 1984, a rise of 75% since 1977. In 1984 only 91 children were admitted to care following applications under the 1971 Act. Under the 1978 Act, the figure was 21. These results are set out in more detail in Table 13.

7.8 In 1984, admissions under the Matrimonial Causes Act 1973 formed around 6% of the total number of admissions to care under interim or full care committals by civil courts? On March 31, 1984 there were 4,844 children in care in England and Wales following an order under section 43. These children formed 13% of the population of children in compulsory care under orders of civil courts. [10]

7.9 Figures supplied by the Lord Chancellor’s Department indicate that 550 care committals were made by divorce county courts in 1985. This figure represents a decrease in the courts’ returns since 1983 (872 care committals).[11] These statistics are substantially higher than those recorded above concerning children admitted to care each year. D.H.S.S. figures gauge the number of children involved and this would be expected to give larger returns than statistics which reflect court orders. However the differences in figures may be accounted for by the collection and presentation of data. [12]

7.10 Across the country, in around one-third of divorce county courts no care committal was made in 1985. Orders under section 43 are generally scattered over the country although it seems that relatively more were made in the South and West. Largest numbers were concentrated in larger cities and towns, for example Liverpool, Southampton, Brighton, Sheffield, Cardiff and Bath. The variation in returns may reflect local authority practice in intervening in divorce proceedings, in preference to initiating care proceedings. One obvious advantage of such intervention is the relatively broadly-worded precondition to making a care committal under section 43. [13]

7.11 In our ten survey courts only six care committals were made (in respect of 0.2% of the children involved), three of which simply replaced a magistrates’ care order. Some of the judges interviewed were familiar with local authority intervention, usually when the child was already in voluntary care. Other judges were less familiar and some demonstrated grave reluctance to commit the child to care. One judge typically makes a short term care order while the child is returned home.[14] Several judges were unable to recall a contested committal to care. Cases which identify a child at risk who is not previously known to social services were said to be extremely rare.

C. Supervision Orders

7.12 A supervision order may be made in family proceedings if there appear to be “exceptional circumstances making it desirable that the child should be under the supervision of an independent person”.[15] The supervisor may be a local authority or a probation officer.

7.13 D.H.S.S. figures show that 2,680 children were placed under an English local authority’s supervision by divorce courts in 1982-3.[16] A further 556 children were made subject to such supervision following applications under the 1971 Act and 289 under the 1978 Act. The number of children made subject to supervision orders in divorce and other matrimonial cases each year has declined since 1980, as is shown by Table 14, over.

7.14 Records of children subject to probation service supervision combine orders made in matrimonial proceedings in divorce and domestic courts and cover England and Wales [17] There were 3,750 children made subject to probation supervision under these Acts in 1982. This indicates a decrease of 330 since 1980.[18] The number of children made subject to orders made in other family proceedings in 1982 was 170, a fall of 40 since 1980. [19]

7.15 Hence, the total number of children made subject to new supervision orders in 1982 under divorce and other matrimonial legislation was 6,973, 54% of whom were supervised by the probation service. It is not known what proportion of the 54% of probation supervision orders followed orders made under the 1978 Act. 90% of local authorities’ matrimonial supervision was ordered under the 1973 Act. In other family proceedings 78% of the 775 children made subject to supervision orders in 1982 were placed under local authority supervision.

7.16 The total number of children under local authority supervision in England following an order made in divorce proceedings has risen from 3,816 in 1974 to 14,877 in 1983. Children subject to such orders made under the Guardianship Act have also increased considerably, from 188 in 1975 to 2,438 in 1983.[20] In the same period the number of children supervised under the 1978 Act has declined from 2,934 to 1,962.[21] The fall may be attributable to use of the probation service in magistrates’ courts. [22]

7.17 Probation service records also indicate that 14,060 children were under their supervision in 1983 following divorce or domestic proceeding [23] In 1971 the figure was 9,350 and, in 1980, 15,130. The combined D.H.S.S. and probation service figures show that 30,899 children were subject to divorce and other matrimonial supervision in 1983. [24]

In 1964 the figure was only 2,723. [25] The number of children supervised has decreased since a peak of 33,430 in 1980-81 which may reflect the fall in the child population and an increase in the number of orders being terminated or lapsing (up by 1,000 between 1980 and 1982).[26] Since around 1977 there have been a larger number of children under local authority rather than probation service supervision in the matrimonial jurisdictions. However more new orders are still made in favour of the probation service. Hence, the latter’s orders seem more likely to lapse and/or be revoked. One reason for this may be the close relationship between divorce court welfare officers (who are employed by the probation service) and the divorce courts. In some cases courts may decide to make short term supervision orders in favour of the probation service (see below) and, in others, the welfare officers themselves may be more prepared to seek revocation than local authorities.

7.18 On June 30 1983, following orders in other family proceedings, only 770 children were supervised by the probation service, the same figure as in 1978. [27] Combined figures for both agencies show that 3,686 children were subject to such supervision in 1983, [28] a rise of 1,206 since 1978. The rise is largely determined by an increase in orders made in Guardianship of Minors Act proceedings in favour of local authorities.

7.19 The welfare agencies’ figures record the children under supervision rather than the number of orders made. Even allowing for more than one child being made subject to each supervision order, the divorce courts record a considerably lower number of orders made than the records of D.H.S.S. and the Home Office would suggest. In 1985 1,503 supervision orders were made under section 44(1) of the Matrimonial Causes Act 1973, approximately three times the number of care committals and 2% of the number of custody orders made.

7.20 Of the 1,503 supervision orders recorded by the courts in 1985, the number of orders, as a proportion of the number of custody orders made, was largely consistent amongst the circuits, with only the Northern Circuit registering low returns. However, individual differences in totals amongst courts were considerable: from 76 (Portsmouth) and 67 (Liverpool) to none in 25 courts, including, for example, Newcastle. Higher numbers of supervision orders were not only recorded in courts which serve inner city areas. From the interviews with judges it seems that courts which take a particularly ‘active’ approach to the children’s appointment may be more likely to order supervision. Some courts seem also to use supervision more flexibly than others. The most often cited and, indeed, the only rationale for supervision in some courts, is to protect the child from apprehended harm. Two judges, moreover, spoke of making short-term supervision orders as a means of checking up on the children’s welfare.

7.21 Several courts which had particularly high proportions of joint custody also figure prominently in the category of courts with high supervision returns (Cambridge, Worcester, Guildford, Tunbridge Wells and Reading). This may indicate the use of supervision to facilitate joint arrangements particularly in cases where there has been discord or one parent does not trust the suitability of the other to care for the child.

7.22 Supervision may also be used to help parents adjust to life after divorce. In particular, all the judges interviewed except one were prepared to order supervision of access to the children. However one judge was unwilling to “saddle” the child with a supervision order on account of his parents’ difficulties. Two other judges commented that supervised access was unpopular with supervisors because of pressure on resources and the timing of access visits out of work hours.

7.23 The preferences of supervisors were also acknowledged by the courts which make finite supervision orders. One judge said that open-ended orders undermine parents’ confidence and another preferred that the extension of supervision should have to be justified, rather than its termination. On the other hand one judge makes unlimited term orders because a fixed date permits parents to make merely temporary improvements, as a means of evading official scrutiny in the long term. The majority of courts provide for revocation of supervision without attendance in court when all parties are agreeable.

7.24 In our ten court survey only 22 supervision orders were recorded, 0.75% of custody orders made. 73% of those orders were made in favour of the probation service. Of the six local authority orders, five were made when the children were in the care of their mothers. probation service supervision orders were made equally in respect of children resident with their mothers and fathers. Surprisingly over 50% of supervision orders were made with joint custody orders. All of these were made in Southern courts with high numbers of joint custody orders (Guildford, Exeter and Wandsworth) which seem to confirm the link between joint custody and supervision noted in paragraph 7.21.

7.25 In the course of the domestic court survey, a supervision order was made in six Guardianship of Minors Act cases (3% of the overall sample; 6.5% of the cases under the 1971 Act). In two cases the order was made following a change in actual custody in contested custody proceedings. Three supervision orders were made in one court, representing 9% of that court’s cases. This court was the only one to have made orders for the retention of parental rights. [29]

7.26 Most magistrates had dealt with cases in which a supervision order had been made, usually in relation to problems over access. A supervision order would also be made if there was some doubt about the parent’s adequacy; for example, if the parent was a young unmarried mother, or, even, if a father were awarded custody. The first suggestion of a supervision order would usually come from the welfare report, but several magistrates foresaw cases where the solicitors could provide the court with all the information it needed, and a supervision order would be made without that prior recommendation. The supervisor appointed would usually be a probation officer in the case of an older child, and the social services department in the case of younger children. The magistrates expressed a general preference for using probation officers, because of their greater contact with the service. However, if the social services department was already working with the family it would be more appropriate to use that department. Furthermore, evidence of the social services department’s involvement with the family might be a sufficient reason for not making a supervision order in a case where it would otherwise be indicated. If the views of the social services department were not already clear from the welfare report, its opinion would be sought. The court would, if necessary, make a supervision order against the wishes of social services, though it would always be best if the proposed supervisor saw the need for an order.

Footnotes Part 7

[1] See Part IV n. 27 above.

2 Matrimonial Causes Act 1973, ss. 42(1) and 52(1).

3 Presumably such cases are ‘other’ orders since courts are instructed to count orders in favour of third parties as ‘others’, see Part IV n. 30.

[4] Application for leave to intervene must be made to a registrar, from whom appeal lies to a judge: Matrimonial Causes Rules 1977, rr. 122 and 124.

[5] Under the Guardianship Act reference to a marriage is replaced by reference to the child’s parents (and also under the 1969 and 1975 Acts, see n. 6).

[6] Matrimonial Causes Act 1973, s. 43(1); Guardianship Act 1973, s. 2(2)(b) and Domestic Proceedings and Magistrates’ Courts Act 1978, s. lO(1). See also Family Law Reform Act 1969, s. 7(2) and Children Act 1975, ss. 17(l)(b) and 34W.

[7] In contrast, under a care order made in care proceedings the local authority receives the same powers and duties in respect of the child as a parent would have, but for the order: Child Care Act 1980, s. IO(2).

[8] The figures need to be treated with some care: see n. 12 below. Wardship figures do not include committals to care under the courts’ inherent jurisdiction: see Re C.B. [I9811 1 W.L.R. 379.

[9] That is by juvenile courts in care proceedings and in all family proceedings. Figures supplied by D.H.S.S.

[10] Ibid 83. ( 1S98e4e1 ,DHSS, Children in Care in England and Wales, March 1983 (1984) Table A1 DHSS figures also shopw that the number of children in care in England under section 43 who are aged 10 or over has doubled between 1977 and 1984. The number of under 10’s is largely unchanged.

[11] Judicial Statistics Annual Report 1983 (1984) Cmnd. 9370, Table 4.9. 670 committals were recorded in 1985 according to the latest Annual Report (Cmnd. 9864, Table 4.9). However, the figure given in the text represents an amended, more accurate return.

[12] D.H.S.S. figures relate to the financial year, i.e. up to 31 March,and record the child’s latest ‘care status’. In 1984, for example, the figure 330 represents both those children admitted to care in that financial year who, on March 31, were subject to an order under section 43 and those who are committed in the year up to March 31 who left care on or before that date and were subject to an order under section 43 on leaving care. If a child was received into care under section 2 of the Child Care Act 1980 (‘voluntary care’) in the financial year up to March 31 1983 but was subsequently made subject to an order under section 43 in 1984, he would be counted only as an admission under section 2 in 1983 (not under section 43, in 1984, since he had already been admitted). Hence a number of family proceedings committals are not recorded as “admissions” under the family statutes. The fall in committals under section 43 since 1982 may reflect either a r e a l f a l l or an increasing proportion of children initially coming into care, by a route other than divorce, in a financial year prior to the year in which a section 43 order is made. Apart from voluntary care, such children may have been admitted subject to an interim or full care order under the Children and Young Persons Act 1969 or on remand in criminal proceedings.

[13] Compare section 43 with the specific conditions required by section1 of the Children and Young Persons Act 1969 in care proceedings.

[14] Although no provision for limiting the duration of the court’s order is apparent on the face of the statute.

[15] Matrimonial Causes Act 1973, s. 44(1); Domestic Proceedings and Magistrates’ Courts Act 1978, s. 9(1); Guardianship Act 1973, s.2(2)(a); Family Law Reform Act 1969, s. 7(4); Children Act 1975, ss. 17(lNa), 34(5) and 36(3)(b).

[16] D.H.S.S., Supervision Orders and Intermediate Treatment, Year Ending 31 March 1983, England (19841, Table 2.

[17] The most up-to-date figures for a complete year are for 1982, see Probation Statistics, England and Wales 1983 (1984), para. 1.1.

[18] Half yearly figures for 1983 indicate an acceleration in the decrease, G., Table 8.1.

[19] That is, under the Guardianship Act (90), in wardship (70) and under the Children Act (IO). Since 1979 only the number of orders made in wardship has increased, ibid., Table 8. I.

[20] The power to make supervision orders (in the Guardianship Act 1973) was implemented in 1974.

[21] Op. cit. n. 16, Table 2.

[22] Although probation statistics do not provide specific evidence of the number of such orders per annum.

[23] Op. cit. n. 17, Table 1.2.

[24] Excluding Welsh local authorities and taking the probation figures for June 30 1983. Op. cit. n. 16, Table 2, and n. 17, Table 1.2.

[25] Including Welsh local authorities: figures supplied by D.H.S.S.

[26] Ibid.

[27] Op. cit. n. 17, Table 1.2

[28] Seen. 24.

[29] See para. 5.41.



8.1 The information presented in this paper has been gathered from court-based and solicitor-based sources. It can only give secondary evidence of the perceptions of the litigants and children involved. [1] However, our survey indicates that a strong body of locally developed “rules” play a role in determining applications made in respect of children.[2] The operation and divergence of these rules needs to be examined in the light of the law’s aim to further the ‘best interests’ of those children. [3]

(a) The Need for Court Orders

8.2 It was noted in the Working Paper that the futures of at least 170,000 children were considered under the custody jurisdictions in 1984. [4] Using the latest available figures, it seems that around 110,000 custody orders are made each year,[5] many relating to more than one child, the great majority of which are accompanied by access orders [6] It has been found already in studies of divorce, [7] and is confirmed in Part 111 for magistrates’ courts, that the proportion of custody cases which are contested is small, relative to the number of cases which come before the court.[8] Rather, a custody order seems often to result from the practices of welfare agencies, for example in relation to claims for housing or supplementary benefit, or from the advice of solicitors, or from the initiative of the court ancillary to other proceedings.[9] Solicitors interviewed assume that in matrimonial proceedings custody orders are “part of the package” in most cases. In this they are backed by courts’ expectations that orders will be made. Hence, in our surveys custody was ordered in over 90% of divorces and in all but one of the completed magistrates’ proceedings. [10] Nevertheless the usual order of the court, conferring custody upon one party, is often perceived as bringing wide ranging repercussions for both parties’ legal relationship with their children.

The solicitors interviewed, for example, believed that clients generally equate custody with exclusive control over the child’s upbringing. [11] It seems that it would be less confusing, and in some cases less damaging, were there to be less pressure from all sides towards obtaining a court order.

(b) The Range of Orders

8.3 The statistics we collected confirm that in the great majority of cases women care for children after separation and divorce. The factors underlying this are profound and various. However, we encountered substantial support amongst courts and solicitors for female child care (and, where practicable, male paid employment as a matter of principle). [l2] Some solicitors were clearly cautious about fathers’ prospects of success in contesting custody. l3 In no case before a domestic court in our survey did a father’s custody claim succeed over a mother’s objection. [14]

8.4 Similarly, on divorce, it seems that courts’ and solicitors’ perceptions of the appropriateness of joint custody partly explain the regional variation in these orders.[15] Opinions on the merits of joint orders are divergent and strongly held.[16] Solicitors acknowledged that tactical applictions, at least those in favour of joint custody, were made in certain cases.[17] Their advice to clients could differ accordingly. A client who perceived a joint order as a threatening interference by the other party could be told that joint custody is simply “a matter of words”.[18] Conversely, a client who had to be dissuaded from contesting the actual care of the child could be offered joint custody as an important ratification of his continued parental role.[19] Moreover, in some courts nomination of a sole (rather than joint) care-taker for the child may be a necessary step towards obtaining a declaration of satisfaction because of judicial reluctance to sharing arrangements. [20]

8.5 In the light of the discretion conferred on the courts by the ‘best interests’ principle, uniformity in orders cannot be expected. However, at present the venue at which a child’s parents divorce may play an important part in the framework of orders made to govern their future relations. Differences of approach amongst divorce courts was found on ‘every matter which permits contention, except that where possible children should maintain contact with both parents. A whole range of policy issues from joint custody and shared care and control to defined access and the use of supervision orders would clearly benefit from exchange of views between judges and others involved.

8.6 Apart from differences over substantive policy, divergence amongst practitioners is also attributable to uncertainty over the tools of the trade. Differences between the orders available in the various custody jurisdictions, for example between custody and legal custody, and custody and care and control, do not seem to be helpful in practice. Indeed the popularity of joint custody orders may be largely a reaction to the problems caused by ‘sole’ orders. Moreover, the similar power to order retention of parental rights and duties seems to be difficult for litigants to understand and for practitioners to operate.[21] To define, and to distinguish, the effects of the orders available to the divorce court presents further difficulty. Even some judges who consider that ‘custody’ means ‘care and control’ nevertheless separate the concepts when giving care and control to third parties. The reported perception of divorcing parents that sole custody gives one parent virtually complete control over the child’s upbringing is at odds with most of the interviewed judges’ interpretation of the law. [22] The range of orders available needs to be simplified, clarified and brought into line across the jurisdictions.

8.7 It seems that for parents (and spouses) and for the agencies which encourage orders to be obtained, the primary concern is to resolve the basic issue of who is to look after the child. Parental responsibilities other than residential and visiting questions are rarely raised.[23] The most helpful order in many cases would deal with the child’s residence, with whom he may stay and whom he may visit for shorter periods. It should seek to avoid giving the, often false, impression that other persons are being shut out of involvement in the child’s life.

Footnotes Part 8

[1] For studies of the ‘human’ side of the divorce process see Murch, Justice and Welfare in Divorce (1979), and the sources therein, and Mitchell, Children in the Middle (1985).

[2] See also Mnookin, “Bargaining in the Shadow of the Law. The Case of Divorce” Cl9791 C.L.P. 65.

[3] Guardianship of Minors Act 1971, s. 1.

[4] See Part I n. 6 in the Working Paper.

[5] In divorce around 87,000, including an estimated 5,000 at the Principal Registry. Under the Guardianship of Minors Act around 10 custody orders in the Principal Registry, 1,757 in county courts and 8,500 in magistrates’ courts. In magistrates’ matrimonial proceedings a further 9,400 custody orders were made in 1984. These figures exclude interim orders.

[6] See Part VI.

[7] See Maidment, Child Custody and Divorce (19841, pp. 61-62.

[8] Paras. 3.2 and 3.3.

[9] Paras. 2.6 – 2.15 and paras. 3.4 – 3.8. Other practicalconsiderations include the attitudes of schools or education authorities towards divorced parents not living with their children, see para. 5.19.

[10] Paras. 3.6 and 3.4, respectively

[11] Para. 5.20.

[l2] Paras. 4.9 – 4.17 and 4.26.

[l3] Para. 4.16.

[l4] Para. 4.4.

[15] Paras. 5.2 – 5.16.

[16] Paras. 5.17 – 5.26.

[17] Paras. 5.11

[18] Paras. 5.16

[19] Paras. 5.11, 5.16 and 5.20. The same dexterity of argument may be employed over access orders, see para 6.5

[20] Para. 5.36

[21] Paras. 5.42 5.44.

[22] Paras. 5.17 ‘- 5.19

[23] See for example, paras. 5.25 and 5.42 – 5.44.

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October 1, 1986 at 12:00 pm Leave a comment

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