Pitting parent against parent

Government plans to make divorcing parents seek mediation over access to children ties family life closer into the state.

The proposed Parental Separation Bill, intended to make warring parents talk over their problems, has a whole range of degrading sanctions. Parents will be set a long questionnaire, which asks among other things: ‘How will your children’s GCSE subjects be chosen?’ and ‘Who will hold their passports?’. They will have to fill out a parenting plan, and may be threatened with parenting classes, or ordered to do voluntary work [sic] or even electronically tagged.

The reforms are seen as New Labour’s concession to the militants of Fathers 4 Justice. The group’s high-profile tactics uncovered a reservoir of public sympathy for fathers denied access to their children by estranged partners.

The extreme cases where mothers have defied one court order after another to keep separated fathers from their children are rare. But they catch the public attention because the emotional responses – on all sides – are familiar enough to be recognisable.

It is not hard to imagine why a mother would go out of her way to avoid a continuing connection with an estranged partner. It is not hard to imagine how a father feels about being shut out of his children’s lives. And what is more, it is not hard to imagine why parents feel they can tell any kind of lies about each other, to the courts, as suit their goals.

What is harder to understand is how we got into this unhealthy state of affairs.

Though the proposed reform seems reasonable in making intransigent mothers talk to their former partners, it is the intercession of the authorities in private life that is creating the problem. The more that external authorities play the role of final arbiter in family life, the less it makes sense for individuals to act reasonably and find reconciliation for themselves. On the contrary, once the courts are involved, parents have more to gain by pushing to the extremes. No matter how sensible people are in themselves, they understand that the adversarial system rewards the most intransigent. Pointedly, the government’s motive for pushing for mediation is to contain the explosion of costly family court cases.

Alongside the growing role of the courts and other authorities is a change in attitudes to childcare. In the 1970s, my divorced mother explained to me – accurately, if a little cruelly – that the presumption that women should have custody of children was not an advantage, but a burden. In those days, only a handful of men, generally from professional backgrounds, would ever complain about losing custody. Most would have taken it as part of the cost of divorce. Not a few would have breathed a sigh of relief. But attitudes to child rearing have changed. Increasingly, access to children is seen as a right to be cherished, not a burden to be avoided.

An important milestone in the transition was the Child Support Agency (CSA) – the government agency that forced so-called ‘dead-beat dads’ to pay maintenance for the upkeep of children by estranged mums. Many fathers, even those who had no dealing with the CSA, saw it as a matter of justice that men should enjoy contact with their children if they are expected to pay for their upkeep.

It is a sentiment that the government and the courts have embraced. They have elaborated a child’s right to know his parentage, to embrace a parent’s right to know his child. Few people have noticed that the meaning of child rearing has been reinterpreted, from being seen as a duty to being seen as a means of self-fulfilment.

It is ironic that a legal system that purports (since the Children Act of 1989) to put the interests of the child first, entertains the idea that children exist to fulfil the emotional needs of parents. Of course, parents enjoy their children’s company – it is one reason why they give up their time to raise them. But it is a step too far to insist that they have a right to enjoy their children’s company.

Nor do we need to take the ostentatious demonstration of parental affection all that seriously. It is the greater public estimation that society places on parenting that makes parents show off their children. There is more than a little egotism behind the display. Furthermore, the value that parents put on access to children often has as much to do with their symbolic value in the contest between parents as it has to do with the pleasure of their company. Fathers sometimes seek access to children to lay a claim on their ex-partners; and mothers sometimes deny access to punish them.

As long as parents separate, then there are likely to be disputes over responsibility for the children. But the less part that the courts play, the more parents will have to resolve those questions for themselves.

Do not be fooled by the modest ambitions of the reforms, with the claim that mediation will help parents to resolve matters themselves. Lord Falconer, the lord chancellor, disappointed the Fathers 4 Justice campaign by saying that mediation must be voluntary to work. But behind ‘voluntary’ mediation stands an array of threats of ‘orders’ for recalcitrant mothers to do this and that. The reforms are most definitely an incursion of the courts into personal life, and one that undermines people’s interests in resolving their own problems.

No doubt it is rough on fathers whose ex-partners do not want to know them. But if they want to know their children, they are just going to have to find a way to get on with their ex-partners. In this case, it is compromise, not ‘the principle of the thing’, that is important. The members of Fathers 4 Justice can complain all they like. No doubt they are right that the courts and society at large have a poorer view of fathers than they once did. But no court can force a mother to raise her children to love their father, any more than it could issue an order to a child to do the same.

The hardest thing to say in today’s climate is that parents invest too much emotionally in their children’s upbringing. That is not to say that they are perfect parents. On the contrary, the expectations that society places upon them are unrealistically high. No longer a biological necessity, raising children becomes more like a display of virtue.

In this rather unhealthy condition, it is not surprising that separation can become more of a battleground than it need be. Fathers who have invested a little time in raising their children feel bewildered when they are shut out. But the questions of custody and access will always be an imperfect rule of thumb. The judgement of Solomon is harsh – but it is better to walk away than to chop the baby in half.

James Heartfield is author of The ‘Death of the Subject’ Explained, 2002. Buy this book from Amazon (UK); or order it at £11.00, plus £1.50p&p from Publications, audacity.org, 8 College Close, Hackney, London, E9 6ER (make cheques payable to ‘Audacity Ltd’).