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Law is Parochial

November 12, 2008

By Robert Whiston FRSA


1. Introduction
2. Sovereignty
3. Syndicated Law
4. Global Law
5. Social Revolution of 1945
6. Revolution and Evolution
7. Tender Years Doctrine
8. Inter-War Years
9. The Welfare State
10. Parents Under Threat
11. Decade of Change
12. Dismantling Guardianship
13. Keeping Fathers Engaged
14. Rational Choice Theory
Annex A – Aristotle and the ‘polis’
Annex B – References
Annex C – Divorces in England and Wales
Annex D – Number of Divorces and Grounds given England & Wales
Annex E – ‘EU trends’ – Changing family and family policy

1. Introduction

The transition from paternal custody to maternal custody – as the default for child allocation after separation – is now complete among the industrialised nations of the world.

In most instances it has been a fait accompli; a seamless and silent transition – no war declared and no battle commenced.

In English common law, for example (which is to be found in many countries of the world) it used to be the case that fathers had near-absolute powers to protect, support, and educate their children but always coupled with strict legal obligations.

In one form or another, this paternal preference was the dominant legal principle in the US and in all of Western European democracies.

How this preference was lost is the topic discussed in this paper.

For the most part the switch to maternal custody has occurred in living memory, i.e. during the Modern Epoch from 1945 to the present day.

The epoch has seen a levelling down in the status of marriage to that of cohabitation, a process pioneered for the legitimisation of illegitimate children.

The epoch has seen the rise of the Social Welfare state as the vehicle of change.

‘Alternative family style’ choices that were once economically not viable, and intrinsically remain so, are now subsidised by the welfare state to make them feasible.

Separated and divorced mothers can make those family style choices and be given full custody solely because the tax payer subsidises her with state benefits, concessions and handouts

It is argued by some that welfarism, i.e. a regime of benefits paid by a welfare state, is the primary mechanism that permits mothers custody and is therefore anathema to the father’s role in the family.

Irrespective of cause, the apparent success of the planned switch to maternal preference invites the question ‘Why have usurped fathers remained ‘engaged’ in a game that is contrary to their interests ?’

2. Sovereignty

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Law is parochial – it has to be.

Law reflects the time and place which conceived it and if it is to meet with public approval it has to be tailored to local demands.

Without law one cannot build in a cohesive manner – the uncivilised and crude cannot glide into sophistication and the complex.

Law must precisely meet local cultural demands, customs and circumstances to be successful.

Law is therefore exclusive and though it may be born of necessity it must – for it to endure – attain the coveted gold standard that enables it to be acceptable to all parties. [1]

This has been true, not of just the last millennium, but for the several millennia preceding it.

In our unconscious we visualise the law as omnipotent and imbued with semi-mystical powers. The reverence we pay to it and the willingness with which we submit to its dictates reflects this regal majesty.

Law is universal, it is found at all stages of civilisation. Indeed, a society without a legal system cannot be considered civilised.

Today we are gathered in Greece – surely the cradle of modern western democracies – and we see from the history of ancient Greece how law and civilisation are inseparable.

The history of ancient Greece tells us how the different city states – Athens, Sparta, Corinth, Delphi, and Thebes, etc – not only had separate laws but differing constitutions.

They were sovereign nations.

The law was answerable to the people and the people answerable to the law.

This intimacy allows us to measure growth and recession, success and failure objectively and point to zeniths and troughs. The imperatives of law for civilisation brought tangible academic and economic progress to Greece. A model later repeated in the era of ancient Rome.

History moves from locally geographical sovereign states to another form, the empires of ancient Rome and Byzantium. Under Rome, law was consolidated but its justice recognised customs and at the local level was administered with compassion, e.g. Pontius Pilot.

Still later we have the emergence of the City States of Italy, Florence, Venice, Padua, Naples, Pisa Genoa, Milan, etc making sense out of the chaos of the mediaeval epoch but where sovereignty and national identity played an immense role.

It is only when we reach the 17th, 18th and 19th century that we begin to see law, in modern times, being exported – but purely as a by-product of exploration and colonisation.

Firstly by the Spanish and Portuguese and then on a European dimension by the France of Napoleon, closely followed by the British in Asia and Africa

Between the Renaissances (circa 1350) to 1939, the European nation state slowly emerged. After 1945 those European nations slowly re-entered a form of federation or consolidation.

Why should this of forfeiting of sovereignty and reversal of nation identity have occurred ?

The immediate answer is that Europe had suffered too many wars, economies were devastated; its peoples were tired of conflict. There is great merit in that argument. Superficially it would seem impossible for sections of a Federation to be at war with another and this benefit alone, i.e. security, would seem worth almost any price, especially when the supranational state promised to protect and defend the rights and liberties of the individual.

Yet as the American civil war, Hungary in 1956, Poland and Czechoslovakia have all shown, internal conflict is entirely feasible.

In the aftermath of World War I it was perhaps irresistible to view the clash between the ambitions of the German Empire, the Russian Empire, the Ottoman Empire and the Austro-Hungarian Empire as anything but inevitable. Without doubt it pushed a Europe of liberal, international commerce into war, and destroyed its liberal structures.

Nonetheless, in The Need for Nations, Roger Scruton (one of Britain’s pre-eminent thinkers), argues that the nation state is the best guarantee we have of peace, prosperity and respect for human rights.

Previous attempts to transcend the nation state by creating some kind of trans-national political order have ended up either as totalitarian dictatorships (such as the former Soviet Union), or as a far off, unaccountable bureaucracies, like the European Union (EU).

In spite of these failed alternatives, the idea of the nation is under attack; condemned as a cause of war and conflict, to be broken down and replaced by more enlightened and more universal forms of jurisdiction.

However, Scruton argues that without nation states:

  • the sense of belonging on which democracy rests would be undermined.
  • individual freedom would be much diminished.
  • fundamental protections would be undermined.

The more remote the government, says Scruton, the more difficult it is to subject it to constitutional checks and balances and the harder it is to ‘throw the rascals out’. Those nations at the peripheries of the EU will readily identify with these sentiments.

While all law should be enforced, how is the citizen and his individual freedoms to be better protected against the abuse of state power ?

Scruton describes that cohort of intellectuals who hate nations or regard them as outdated as ‘oikophobe’, the etymology being Greek (oikos) referring to a house or dwelling.

This elite have a ‘hatred of home’ that leads them to demand international or Europe-wide rule. But in do doing they fail to see the dangers of eliminating nations that are founded on constitutional liberalism.

It is Aristotle, many believe, who offers the most profound analysis of the polis, i.e. the city state and the households within it.

The overwhelming characteristic of the city-state was its small size. This allowed for an amount of experimentation in its political structure and for policy decisions to be made relatively efficiently in response to changing demands (Annex A)

The biggest selling point of the EU has been its ability to put substance onto the 1919 expression “The war to end all wars”.

It would appear that the only author able to explain how peace, prosperity and human rights can be secured without nation states is Immanuel Kant in his book ‘Perpetual Peace’. He called for a League of Nations. But Kant foresaw that laws would lose their force as they became further and further detached from the people bound by them. Despotism would likely be followed by anarchy.

Can it be argued that this Kantian nightmare is exactly where we are heading in 2009 ?  That under cover of globalised trade, international declarations of ‘rights’ and a European Constitution, the individual citizen (and fathers) no longer matters ?

Could it be that the despotic nature of government referred to earlier is a result of legislators who are entirely unanswerable to us and yet we have to obey them ?

The anarchy dimension, says Scruton, will happen quickly in the wake of despotism. When law is finally detached from the experience of members of a nation; when there is no ‘investment’, or sense thereof,  by the citizenry in the state; when it becomes ‘theirs’ but not ‘ours’ – then at that point Law will lose all its authority and the battle for the hearts and minds of the populous it presumes to discipline.

This tipping point was reached long ago in regards laws affecting fathers and custody.

The insensitivity of the EU towards the demands and need of the ordinary man are already with us. Fraud and low moral behaviour is condoned at the centre (Brussels) as every year millions of Euros goes missing and no one is held to account. Symbolic of a central malaise.

Globalisation has brought not more and better paid jobs but unemployment. The easing of poverty and rescues from the credit collapses are dealt with at a national, not a supra-national level.

For whatever reason, anarchy is already on the streets in Greece (Dec 2008).

The reasons why these young men and women are prepared to go up against armed police is curiously apropos yet tangential with regards fathers and the Fathers’ Movement (with notable exceptions) who have lost arguably something more valuable – their children.

Why fathers do not robustly attack the system is dealt with at the end of this paper.

Why when ‘hostages to fortune’ meant the return of one’s children only after successfully fighting a campaign or battle, are we not in the same position and feel able to fight for our children’s return ?

3. Syndicated Law

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The 20th century, however, has seen something of a marked change from the heritage of accidentally bequeathing legal systems.

Deliberate steps, certainly since 1945, have been taken to ‘internationalise’ law by exporting it and in so doing reinforcing a global world view of what is acceptable that is held by a cabal or Commissariat.

Here I refer specifically to the English speaking countries of the world where Common Law is the common denominator – but I also note the influence those changes have had on other countries to conform to that ‘world view’. Behind the sham to which democracy has now fallen, it can be argued that something approaching an oligarchy is now operating.

Immediate examples that spring to minds are the US politicking of the Kennedy’s and the Clintons. This might be an efficient use of time, but it is not democratic.

Law is no longer parochial yet nor is it universal – by which I mean it fails to meet the universal needs of men for justice, or the real yearnings of Mankind. [2] It no longer pretends to represent the will of the majority.

Instead, law is in transition. Legislation now favours minority interests.

Legislation has been merchandised – transformed into handy packets of off-the-shelf reform to be distributed globally.  Law reforms are now syndicated, franchised, vertically integrated first by one country and then adopted by others.

Law and legislation have been reduced to political tools to effect change through public policy.

The 20th century is outstanding – if not unique – in that it has seen the law surrender to the shared ideals of a newly emergent but unelected political and academic Commissariat. The population has found itself voiceless. It has had to acquiesce in the face of what many see as unnecessary changes but which are invariably termed ‘reforms’.

As a society we have been cleaved into the two camps of 1). the people and 2). the Commissariat – the possessed and the dispossessed; the governed and the governing class (oligarchy).

4. Global Law

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Law has taken on an international tone. A recently passed law in one country is remarkable similar to a new law about to be approved in a wholly disconnected country.

One nation appears to ‘pilot’ a seemingly appropriate solution to a problem only for it to then be adopted by several other countries.

The creation of trading blocks in the late 20th century, globalised trade and the internet has only accelerated this global tendency.

The difficulty arises when the original solution – not having been fully tested – begins to shows its faults. Before long, all those countries that have mimicked the original nation are faced with identical dilemmas of inoperability, expense, rushed counter-measures and general social unrest.

Law, particularly social law, now reflect the international co-operation between ideologues to be found in academic and political commissariats in the different countries around the world.

Legislation is today not spontaneous or original but little more than a means to an end; where the goal is agreed and legislation merely the tool to transform the ‘agreed agenda for action’ into actual change.

Social change since 1950 has tended to be pre-ordained by an anonymous and unelected elite for consumption by the proletariat. This Olympian-style of legislation-from-on-high impacts severely on those divorcing and in the midst of custody matters.

We have the contradiction where each divorce and custody case is said to be different and unique but where the verdict or outcome (of maternal custody) is identical.

The ‘one-size-fits-all’ flies in the face of the stated paradigm.

5. Social Revolution of 1945

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The pivotal year is 1945 and the immediate aftermath of World War II. This is the beginning of the modern epoch. The marshalling of scarce resources and their efficient deployment to all corners of the globe to fight in all theatres of war had shown that planned economies and central control could work. The Anglo- American experience appeared to reinforce pre-war Soviet propaganda of an idyll on earth achieved by Five Year Plans drawn up by a Central Committee. Of course, today they have been revealed as false propaganda claims but at the time the public did not know that.

However, to achieve this level of apparent progress and efficiency both the Anglo-American bloc and the Soviet satellite states had to suspend fundamental human rights of liberty, demonstrations and free speech etc. (limited though they might have been in the latter state). This and total mobilisation of civilians distinguishes World War II from World War I.

Wartime propaganda was bent to justifying the model of ‘total mobilisation’ that a planned economy and central control required.

As a consequence everything from the provision of free kinder gardens for working mothers, up through the higher echelons of the economy was undertaken by the state – and in wartime conditions such a command economy was unquestionably successful.

In the post-war era with Europe on its economic knees it was not unreasonable that governments should cling to that which it knows best.  In peace time the emphasis from progress and efficiency switched to progress and prosperity.

In the nervous post-war atmosphere, searching for answers and hungry for reassurance in a new and unfamiliar world order, it is not surprising that proposals for a modified peace-time model of a planned economy would seem attractive to government and officials and would therefore find favour in many influential quarters. [3]

Nowhere was this concept adopted (and adapted) so meticulously in the post-war era than in the Social Sciences – giving birth to ‘social engineering’ which, unseen, governs our daily lives.

However, an examination in detail of the post-1945 years is not possible until we have recognised certain key events and decisions that heavily impacted between 1880 and 1920. Debris from the Victorian age was to collide with the modern post 1945 era in a way that could not have been anticipated.

6. Revolution and Evolution

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When we look back at the late 19th Century we see that women’s rights, particularly in the USA, were on the move and that for unrelated reasons, child custody rights were also evolving. These two topics were to form an iceberg that would only crash upon the scene at a half way point between 1945 and 2000. Although popularly portrayed today as female political aspirations in their embryonic form they were in fact more likely driven by economic necessity.

Britain was the first nation to undergo the Industrial Revolution with a resulting increased emphasis on the division of labour.

The sight of satanic-like steel mills belching flames into the night sky, long working hours and poor sanitation culminated in a high male mortality rate. In this period the number of widows with dependent children to care for increased and moved the Christian conscious of parliament.

The 19th century saw the development of primitive social welfare policies from a ‘paternalist’ state. In both the USA and Britain it was seen as right and proper to address the economic needs of widows and their children.

However, these policies took care to exclude divorced (and unmarried) women and their offspring. These conditions were seen as matters of moral turpitude [4] and lax ethical standards to which the state should not lend its weight. By the 21st century these views are adjudged ‘judgmental’ and ‘discriminatory’. In the 21st century there is something we value more than morals – policy costs.

Ironically, 19th century saw very low numbers of mothers affected by divorce while the 20th century has seen huge numbers. Yet it is the morality of politicians in the 19th century that is condemned not the profligacy of politicians in the second half of the 20th century

In the 19th century a typical year would see fewer than 15 divorces heard and granted by courts in England. This, it should be stated does not represent the greater stability of marriage in the 19th century but the high expense of divorce.

The 19th century is widely popularised through the novels of the Bronte sisters and Jane Austen, however, their world represents only 5% of society, the comfortable, the affluent and the upwardly mobile in society. The reality for the remaining 95% – the working poor – was a life brutalised by indifference and found within the pages of many of Charles Dickens’ novels.

Sweden, which is now held up by many as a shining example of planned modernity, exemplifies the true cruelty and ferociously brutal life of the Victorians and Edwardian epochs. Photographs of small Swedish fishing and farming communities clearly show a subsistence living. There were no cash crops as we understand them today. The mass emigration to the USA, beginning in the 1860s, of over 1.3m was as obvious a solution – as it was for Ireland.

The political climate in most Western nations was generally sympathetic to some welfare relief (in the short term) but unsympathetic to any extension of social welfare (medium to long term). The state’s long term economic interests lay in the burden of family costs being funded by fathers, and by them being at the hub of family life, not the public purse.

The wage earning father was exclusively responsible for his family, of wife and children, i.e. he had guardianship powers. The male imperative to fight to protect what is his and what he holds dear to him proved a bulwark against state intrusion despite the levels of poverty then appertaining.

A conundrum was created when male mortality rates began to affect that ability and the legal status upon which governments had relied for a self-sustaining society.

How, given the levels of poverty, could guardianship and custody be safely entrusted to women given their non-existent (in many cases) or low earning power ? Women, then as now, are not hardwired to stand up to the demands and threats of the state. [5]

Why did government effectively encourage maternal presumption in child custody cases and how was the transition achieved ?

7. Tender Years Doctrine

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The 19th century saw a series of measures to tackle a series of emerging social problems. The Custody of Infants Act 1839 is indicative of these contemporaneous changes of attitudes.

The Act allowed a wife who was separated from her husband –  provided she was ‘of good character’ – to petition the court and thereby gain custody of those children provided they were aged under seven (at which age they had to be returned to their father’s protective custody).

This “tender years” doctrine is said to have been advanced by Thomas Noon Talfourd.[6] Although intended only to determine custody until the age of seven in private law instances, i.e. divorce, it was to prove the first major challenge to the paternal presumption.

Progressively the age limit was raised first to 14, then to 16 (Custody of Infants Act 1873), and then via the Guardianship of Infants Act 1886, raised it to 21.

However these ‘liberal’ private law trends were magnified when they gradually became incorporated into public law, i.e. those cases where local organisations, town authorities etc had care of the poor.

Orphans, widows, waifs and strays, the unemployed, the disabled and the criminal classes had since the 1500s all become the responsibility of parishes and local councils. However, the Poor Laws Amendment Act 1834 saw a unified national provision to house and find work for these citizens. This took the form of the now infamous ‘workhouses’ run by local Boards of Guardians (a system still in operation in 1947).

Across the Atlantic, in the United States, there was also a movement toward a maternal preference. It was accompanied during the late 19th century, according to Mary Ann Mason, by a more pronounced wish to see an increase in the legal status of women. [7]

As America industrialised in the late 1800s fathers sought work (as they had in Britain) beyond the farm or village but mothers on the whole remained at home as primary caretakers of children. The resultant division of family responsibilities into wage earner and child nurturer in Britain and the USA influenced subsequent opinions regarding child custody.

This was a pattern to be repeated in many European counties and so it is reasonable to assume that this transition applied to other industrialising nations.

Maternal preference thus gradually encroached and then overwhelmed paternal preference.

The conventional wisdom holds that several major historical trends also converged to weaken the paternal presumption in the late 1800s, including society’s increasing concern for children’s welfare, the hours they worked, and the effects of the industrial revolution. This is true to a point.

An era that is conspicuously absent in the explanation of the transition is the 1914 to 1918 war. Given the huge loss of life – mainly of one sex – the following decades of depressed marriage numbers, increased spinsterhood and the first legislation formalising Child Adoption, do not meaningfully figure in any social history.

Debra Friedman in her book “Towards a Structure of Indifference: The Social Origins of Maternal Custody” (pub. 1995), explains the transformation in custody laws somewhat differently.

For her the emergence of industrialisation was one of many secondary factors. Friedman sees the evolution as determined by “generic social forces that, in their sweep, were little affected by national variations” such as different legal and political traditions.

Friedman argues that during the forty year period from 1880 to 1920 the presumption that fathers should be awarded custody of their children was changed in all Western countries – but only where divorce was permitted.

This linkage, however, seems tenuous. If she is precise in her wording then the number of women divorcing and the quantity of children affected would be so minimal as to not warrant legislative time. However, if she includes in her divorce figure those that separate outside of marital unions and widows then her version, though still not compelling, is worth examining.

The historic records for divorce in the US are not kept as one might suppose by the Department of the Interior of the Census Office (their ‘Eleventh Census: 1890’ yielded no figures whatsoever). They are instead collected by the Dept of Health. [8] In the decade 1870 to 1879 over 3,900,000 marriages took place. Against this backdrop some 11,000, rising to 20,000 pa divorces were granted across that vast expanse of land which is the size of Europe (Fig 1).

The table below (Fig 1), give some proportionality for the era Friedman has in mind.

Fig 1. USA Divorces and Marriages as a percent distribution by area of occurrence: United States, each region and division, selected years 1870-1967
All the US States 1870 1880 1890 1900 1917 1927
Divorces 11,000 20,000 33,000 56,000 122,000 196,000
Marriage 351,000 453,000 570,000 709,000 1,144,00 1,201,000
Ratio Marriage to Divorce 32 22 17 12 9 6
Divorce % age 3 4 5 7 10 16
Source: Table 1 and 5. Marriages & Table 6. Divorces “100 Year of Marriage and Divorce Statistics United States, 1867-1967” (DHEW Publication, 1973, p 22).

There is an obvious acceleration in the number of divorces in the late 1890s – a trend that continues into the 1920s with a doubling to 122,000 as the US enters World War I. However, with such small beginnings in the 1870s, one wonders why Friedman begins at that juncture and not at 1900 or 1910 ?  It is difficult to imagine legislative or cultural changes premised on 11,000 divorces and probably, therefore, custody cases per annum. Given the moral values and mindset of the day, the difficulties of a divorced woman would be a ‘misfortune’ – one of many life’s tribulations found in everyday life and, unlike today, would merit no special consideration.

Nevertheless, Friedman poses two very good questions – though her answers to them are far from convincing. Firstly, she asks why a shift of this magnitude and importance has, in less than a hundred years, been lost to the public memory ?

Secondly, she asks why did the dominant group, i.e. fathers, ceded rights to the mothers without duress – indeed, without concerted political or collective action of any kind ?

8. Inter-War Years

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The inter-war years witnessed an economic collapse, isolationism and nationalistic trading protectionism. Social reform focused on relieving economic hardship among families generally.

Nonetheless, in the USA the maternal preference in custody determinations had by the 1920s, became as firmly fixed as the earlier paternal preference, both in statutes and in judicial decision making. [9] This was far from true of Europe until much later, i.e. after 1945.

The assumption that mothers were better suited to raise children arose first in the US where it received intellectual underpinning in the 1940s from Freudian psychoanalytic theory. This emphasised the mother’s role as “unique . . . the first and strongest love object . . . the prototype of all later love relations.[10]

Subsequently, the large amount of research stimulated by this theory of how infants developed ‘attachment’ to their mother was as equally influential (by the sheer volume) as the celebrity status of Sigmund Freud in supporting the belief that there was an inherent maternal preference. [11] It should be noted that Freudian psychoanalytic was not as fashionable in Europe until much later.

It was only later that research indicated that infants formed meaningful attachments to both of their parents (male and female) by the middle of the child’s first year.[12] But by that time, it was too late; the concept of maternal preference had settled in the public’s psyche.

Naturally, if every infant can form an attachment to either parent it lends great support to paternal ‘mothering’, i.e. child rearing by fathers, and the competing claims of fathers groups for sole or joint custody. [13]

The newly formed fathers’ rights advocacy groups of the 1980s began accessing many of the scholarly publications on this subject. Fathers’ rights advocacy groups armed with the information about attachment theory provided the impetus to fuel demands for joint custody back into academia causing academia to re-asses its blanket acceptance of maternal attachment. [14]

Both Princeton University and the Brookings Institute recognised this role. [15]

Further reading titles and authors are listed in the Annex B.

9. The Welfare State

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Bearing the above in mind we can now look closely at the post 1945 developments. In Britain War had loosened family bonds. Children had been evacuated out of urban centres since 1939. In this manner maternal ties were broken as seriously as paternal ties had been severed by conscription.

The US and arguably the rest of Europe experienced less of a planned ‘social rupture’.

Family re-formation post 1945 was patchy and erratic. Family breakdown, which had begun to accelerate during the war years, brought forth a response from the establishment that facilitated easy divorce. The armed forces took the view that it would impair fighting morale if failing marriages were left to linger.

After de-mobilisation troops came home to wives who were or had lived with other men and/or had given birth to illegitimate children. Demands for divorce increased dramatically so the government took emergency powers to relax the rules.

From 1946 to 1951 the state temporarily permitted ‘special measure’ divorces requiring the minimum of evidence and formality. They were meant to clear away the unique backlog of dead marriages. This duly occurred and in the following decade (until 1960) family life stabilised, family formations increased and divorces dropped significantly (but never to pre-war levels).

Prof Carol Smart, a favourite among government departments and policy formers, is one of a number of authors who appear to ignore the divorce statistics of 1937 to 1960. [16]

Smart states that the average number of divorces between 1951 and 1955 was 29,500 pa. This selectively omits the much lower yearly totals from 1956 to 1960. Using the ‘Annual Abstract of Statistics 1938 – 45’ the yearly average is lower at 27,608 pa. This low level is confirmed by the House of Commons Research Paper 96/42.

The rupture to the cohesion of society that World War II represented meant that the very low levels of divorce in the decade from 1930 to 1940 (of between 5,000 to 9,000 per annum), would never again be achievable (a full display of numbers divorcing is shown at Annex C). Divorces numbers peaked in Britain at 176,000 in 1993.

10. Parents Under Threat

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Custody awards in the years between 1945 and 1971 depended on “conduct” and to a degree, ‘behaviour’. Parent had to be ‘fit parents’, which was a vague term that encompassed high morals, probity, virtuousness and a personality balanced enough to give children a safe and nurturing environment.

Any hint of lascivious conduct or behaviour that might jeopardised the child’s moral welfare or the child’s physical excluded the granting of custody and therefore guardianship.

The Welfare State between 1947 and 1957 had not evolved sufficiently to subsidise maternal custody. Benefits were still limited to those who contributed them. The state looked to husbands and fathers to prevent women becoming ‘a burden on the state’ in marriage, but more acutely after divorce. The state’s rational response should have been to contain divorce as the following figures demonstrate (Fig 2). Note the transformational year of 1980.

Fig 2 Treasury Expenditure 1970 – 1997 (£m) (incorporating. FIS, Child Benefit & Family Credit paid to unmarried mothers and divorced mothers).
Year 1970 1972 1974 1976 1978 1980 1982 1984 1994 1996 1997
£ m 354 354 359 554 906 1,981 3,372 5,189 6,050 6,327 6,724
Source: ONS  ‘Population Trends’

Granting a divorce in the years before 1971 (the year of far-reaching changes), still depended on the ability to pay spousal maintenance (from husband to wife). Lack of money meant the poor, as in the 19th century still could not divorce.

The cost of a straight forward undefended divorce – without custody complications – was estimated in 1971 to be around £100.00 – at a time when a working man, on better than average wages, could earn about £1,000 per annum. [17]

It was in these two decades, from 1970 to 1980 and 1980 to 1990 that an Air of Enlightenment blew into matrimonial separations and Joint Custody flourished. Unprompted by official inducements, parents were agreeing to share custody after divorce. It was not until 1985 that the judiciary officially woke up to this silent but burgeoning trend. [18] But as divorce no longer depended on the husband’s ability to pay it meant the state would have to make up the shortfall.

The point of this digression is that government must have been aware of the financial implications of increasing lone motherhood bearing in mind their experience with widowhood after 1945.

Doubling the number of lone mothers – be they widows or divorcees – incurs a greater than doubling of costs per child due to a). all the ancillary expenses a father might be expected to provide, and b) forfeited tax revenue as most widows and divorcees would not be paying taxes to off-set their burden on the state.

Between 1938 and 1948 the Number of Widows increased from 38,000 to 963,000 (or close to 1 million), an increase of 25 times (Fig 2A).

However, from the sketchy statistics of the time, the cost of widow’s pension and orphan’s allowances etc only doubled from £25 million pounds pa to £58 million pounds. Clearly the record here is far from complete.

It is possible that the pensions of war widows (79,000) were in those days paid from a separate Treasury account. Military retirement pensions and military widows’ pensions have been dramatically altered since 1950. Officers and “Other ranks” are now paid the same pension amount.

Fig 2A. Number of Widows & Costs.
1938 1942 1945 1948
Number of Widows (000s) 38 895 922 963
War Widows
Officers nil 2,810 10,950 nil
Other ranks nil 18,610 69,260 nil
Cost of Widows & Orphans (£ 000) 25,055 26,431 26,515 58,133
ONS, ‘Fighting with Figures’  Table 49 & 2.10

The 1969 Divorce Reform Act, enacted in 1971, effectively put an end to divorce premised on misconduct and gross behaviour. Divorce could now be granted without regard to conduct or the need for former husbands to make financial provisions. It also marked the beginning of the end in the official collection of the reasons why a divorce was requested and granted (see Annex D).

This put women in a much more commanding position, for as soon as the proposition was accepted that the state would not pay for child or spousal maintenance and the burden lifted from the husband, divorce was open to all classes of society. The only source to fund this cataclysmic change had to be confiscation of matrimonial property.

This is not so radical or unprecedented as it first appears. Death Duties had, from the 1790s, grown ever more burdensome. By the 1920s over 1,000 large Country Houses had been demolished in part due to their wealthy owners being killed in World War I and the estate not having planned for such a large cash call on its reserves. Fine art collections were broken up, interiors sold off, the estate’s woodlands, forests and fields were all sold off to meet Death Duties.[19]

Any survivor of World War I, in failing health, would by the 1930s be faced with paying Death Duties and the whole process was re-energised and repeated.

Within a generation, any surviving child of the original owner would be faced with Death Duties he would not be able to meet.

The difference with 1971 was that the selling-off of property was no longer confined to the wealthy but was thrust squarely at those with least assets – and who needed every one of them to survive.

The cultural vandalism of Death Duties that broke up magnificent country estates was replaced by a sabotaging of living standards caused by the Divorce Reform Act that becomes effective in 1971.

The first penalised male inheritors of property and the latter penalised and disadvantaged ordinary fathers of moderate means.

Cultural expectations in 1970 were very different than those experienced today. Firstly, a mother with young children was not expected to go out to work in 1969.

Secondly, women’s role in the work place was not as automatic as it is today.

Thirdly, a mother with young children to care for had to have a home.

Fourthly, chivalry would not permit a court to leave a mother destitute without money or home.

The only party left to whom these criteria did not apply was the husband. He became the obvious target. The court would sacrifice his house, his children, his income, his wealth and his incentive to work in order to make a) the divorce work and b) prevent the former wife becoming a burden on the state.

11. Decade of Change

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The decade from the first half of the 1960s to the first half of the 1970s was clearly a major watershed in Western history with rise of Multiculturalism and Radical Feminism in both the USA and Europe.

In her book “The Death of the Grown-up”, [20] American columnist Diana West traces the decline of Western civilisation but from the perspective of the adolescent mind set among adults over the past two generations.

The paradox is that the people who so vicious attack their own civilisation – invariably advocates of multi-culturalism and radical feminism – had enjoyed the uninterrupted economic growth created by others for decades.

The theory behind both multi-culturalism and radical feminism is acknowledged to be basic Marxism or Marxist-inspired ideology.

Diana West points to the dichotomy of arrested development as indicative of other measures of social progress and the left wing views that have decidedly undermine the very society which had allowed these advocates to live their privileged lives.

This era also the age of decolonization by Western European nations and desegregation in the USA. This, Diana West argues, created an atmosphere where Western civilization could be portrayed as evil and self serving. It is since that decade from the mid 10960 to the mid 1970 that we have since been struck by a series of hammer blows challenging the validity of our civilization. We have been stuck in a pattern of defending ourselves from eternal opposition to our own civilization and cultural ‘norms’ which have so transformed the world for the better.

Yes there have been real problems but some, if not most, of these problems were not our making, not intended and certainly have older roots. Yet this has not prevented the creation of a bandwagon of blame.

The demonisation of institutions rose to an unprecedented degree during the 1960s, only later to be redirected, some would argue, at fathers.

Pointedly Diana West is of the opinion that it is “the unprecedented transfer of cultural authority from adults to adolescents over the past half century or so has dire implications for the survival of the Western world.”

Can the same or similar be said of the authority shift from fathers to mothers and from men in general to women ?

12. Dismantling Guardianship.

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This current position of women in Brittan with regards custody matter is shown in the table below in Fig 3. Exactly how guardianship was dismantled is detailed in a separate paper.

A compressed version of the long and involved process begins with the Children Act 1989 inadvertently neutralising paternal power and influence

With Guardianship gone paternal power and influence disappeared to be replaced by maternal power and influence. This was facilitated by the new legal term “Residence” which was supposed to give near equivalence to guardianship powers. Residence orders were invariably awarded to mothers and thus maternal power and custody became the ‘norm’.

From the table below (Fig 3) it can be seen that for 2002 the award of 30,000 Residence orders and over 60,000 Contact orders, which would be granted to a father so he could apply to see his child. For unmarried couples a father would have to apply for a Parental responsibility (8,240).

While it is important to realise that the figures for Contact orders might contain some duplication and are not arithmetically faultless, we must assume, given CAFCASS annual figures for reports written, that it is close to the net figure.

Fig 3. Contact and Residence applications made under Sect 8 of the Children Act 1989. (Hansard 24th May 2004: Column 1318W).
Disposal of selected applicants in private law in all tiers of court, 2002

Nature of application

Applications withdrawn Orders refused Number of ‘No Order’ orders Orders made
Parental responsibility 773 290 132 8,240
Section 8
Residence 1,536 158 431 30,006
Contact 2,373 518 945 61,356
Prohibited steps 300 40 77 8,889
Specific issue 207 33 67 2,940
Total 1,652

Similarly, while Residence orders are capable of being duplicated this is far less likely than for Contact orders.

Therefore, for the year 2002, it would appear as if there were approx 100,000 orders affecting children. (30,006 + 61,356 + 8,240 + Misc’l).

Not all custody matters are settled by a court and as estimations vary wildly for these ‘informal arrangements’ it is almost impossible to gauge the total child figure.

To gain a perspective as to validity of these 2002 estimated numbers we can turn to ONS data for, say, 1995 when there were 155,739 divorces which involved 106,939 couples with children

If we assume the average number of children to be 2.1 then 214,000 individual children would have been directly affected. Correspondingly, the figures of 30,006 and 61,356 for 2002 are not ‘per child’ but could relate to a former family of 2 or 3 children.

Of note is the rule of thumb that 33% of divorces (48,560 in 1995) do not involve children

Debra Friedman maintains that the evolution from paternal presumption to maternal custody involved more than the substitution of one parent for the other, and more than a simple inter-change of paternal for maternal rights.

She implies that a father’s once absolute rights of control was usurped by the state which now exercises its authority in custody disputes through the rhetoric of concern for “the child’s best interests”.

An authority in the child best interest – Friedman believes – that was increasingly interpreted to compel ‘nominal’ maternal custody while effectively the real control of children fell into the hands of the state.

Rather than the child’s mother acquiring the real rights and powers of parenthood, i.e. guardian-ship, as many fathers believe, it actually rests with the state.

In this regard Friedman is at one with many thinkers among many fathers’ organisations though rank and file have still to realise that mothers have no real powers or control over the child save through the state using her as a puppet.

This displacement of the father as custodial parent did not, Friedman observes, trouble the conscious of the state, which at the same time refused to relieve him of the financial obligations for his erstwhile family they have put beyond his reach.

Compared to others, Friedman’s approach to the evolution of child custody laws and practice is more sociological than historical.  In the rise of maternal custody she stresses the impact of impersonal forces and effectively dismisses the role of any individual, either male or female, acting as an agent for change.

The only exception she makes to this conclusion are judges. She therefore has much in common with authors from the men’s and fathers’ movement. This poses a contradiction, for if one dismisses the role of any individual or group one cannot at the same time lay the blame on judges. Her amalgam of vague ‘generic social forces’ has some merit but it must include judges as a subsidiary component.

To recap, Friedman believes the transformation in custody laws and practice was due to the influence of “generic social forces that, in their sweep, were little affected by national variations.” Different legal and political traditions she does not see as pivotal (p. 59).

The men’s and fathers’ movement also see those ‘generic social forces’ but ascribe them to specific players and policies. Whereas the 19th century might have seen sporadic and uncoordinated, change in the mid 20th century progress has the texture of an altogether more planned and orchestrated progression, and if this is true or most probable, then it would be logical to see the hand of a commissariat informing the process.

Curiously, in an age which leaps at every opportunity to take credit for change and ascribe it to women, she minimises the significance of women’s ‘empowerment’ over three decades (1965 -1995) and the major transformations in female roles and opportunities. This puts her at odds with many of her contemporaries, e.g. Mary Ann Mason.

Friedman cites four trends that contribute to custody laws changes. One is the increasing divorce rate and the second relates to the increased number of children affected by divorce (the other two factors relate to increased life expectancy and decrease in maternal deaths).

As stated by Friedman, these arguments appear somewhat circular.

More persuasive is the conduct of government in promoting divorce reforms and in the timing of such reforms. This begs a question rarely asked of just why should government take on what is bound to be divisive and controversial reform, risk unpopularity unless it were prodded and pushed into acting ?).

From 1969 to 1975 the “need” to reform divorce overwhelmed one nation after another. Within five years of Governor Ronald Reagan’s signing into law the trend setting “No-Fault” divorce regime, forty five other US states had eased restrictions on divorce (1975).  Within those same five years divorce reform followed in most of the English speaking nations. As the Wall Street Journal noted:

“ . . . . . the revolution was accompanied by a 31% surge in the divorce rate …. hundreds of thousands of split families fallen into or near poverty and growing evidence of lasting psychological damage to children in broken families.” (Jan 1996):

The cumulative effect of these changes and the insatiable demand for even more reform from forces within society resulted in the creation of a potentially huge welfare burden for the state to fund.

With pre-existing welfare states of varied sophistication, Europe was, in the 1970s, better placed than the US to initially finance the transition through subtle amendments to welfare payments.

The transition brought on by No-Fault” divorce and funded by welfare states, permitted subsidise that were once the preserve of widows and their children to be extended to all women without a man. The cost of this dwarfed all previous provisions made by the state for vulnerable women.

Speaking from an American perspective, Debra Friedman sees this burden as an impetus for reviewing and perhaps re-introducing paternal preference in custody matters. In the US, where the phrase “taxpayer’s dollars” is common place and carries political weight, this would make excellent common sense.

Eventually Europe with it more generous benefits payments fell into line with the US as government by government decided it could not, after all, fund the life style choices it had advocated to women. The burden was increasingly shifted onto fathers – irrespective of their ability to pay with the introduction of child support legislation.

The upshot was that the US, which has never had as complicated or as comprehensive a welfare regime as Europe, has seen the growth of an underclass where state benefits are greater if the mother is unmarried or cohabitating than if she was married – and for the funding bias to stimulate further  separations from husbands and partners.

The cost of raising children is always underestimated. Analysis shows that it can cost half a million pounds (E 0.75m Euros) to feed, clothe, educate etc a child from the age of 1 month to 21 years.

If fathers can be made to maintain financial obligations it relieves the states of billions of pounds (Euros) to be spent elsewhere. It is in the state’s economic self-interests to privatise Maternal Support in the guise of child support.

Similarly, if we assume that child custody is ‘nominally’ in the hands of the mother but in actualitie it is the state that is now the children’s legal guardian, getting the father to pay for something he no longer has is not only a neat trick but reinforces the belief that he has a meaningful interest in the child. The state must do all it can to prevent him from wondering off ?

13. Keeping Fathers Engaged

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It would be an added bonus for the state if fathers could be intimidated or belittled into providing not only for the children of a former marriage but also any new children from a second marriage and for which they think they have custodial rights.

Married fathers, who are by definition custodial fathers, enjoy their company and need to provide only for children of the marriage. The situation is reversed for divorced fathers. Suddenly they become “non-custodial fathers” yet are expected to still provide for their children.

This is a not unreasonable supposition in the eyes of many, except that all around the world approx. 75% of all family break-ups are brought about by the wife.

However, that is to overlook the meaning and derivation of the word divorce. Divorce according to the dictionary means a ‘dissolution’ which is: – a decomposition into fragments; disintegration; the permanent termination of all formal or legal bonds; annulment; extinction; death.

Where in the definition or in the range of alternatives words is there an obligation to continue paying or to be responsible for that which is now dead and gone ?

An argument can be made to assert that men are being taken advantage of because they are ‘hardwired’ to provide and protect.

If we accept as a given that fathers are ‘hard wired’ with the innate urge to provide and protect, it is a small step to capitalise on this attributes. Under the mantle of equal shared authority a father can be made to feel as if he is still central to a child’s life (in fact, nothing could be further from the truth). Once fathers feel they are ‘engaged’ in the game, the next task is to maintain that interest followed by how best to subsidise the state’s obligations to the mother

Once fathers are made to feel they are outsiders the consequences are entirely predictable. Australia’s “Commission for Children and Young People and Child Guardian” [21] publishes fatal child abuse reports. One, the Annual Report Deaths of children and young people Queensland 2004–05” is indicative.

  • In the vast majority of murder-suicides where residency of, or access to the children is in dispute, the perpetrator is male and either the children’s biological father or stepfather.
  • Conversely, in murder-suicide cases where women are the perpetrators there is usually evidence of mental illness involving delusional thought processes (Johnson, 2002).
  • Although the father’s motive remains unclear, a suicide note insinuated he was responding to the court decision and it appears that he was trying to prove ownership of the two young children.

Why does that seem to academics to be a surprise finding ? Of course, he was trying to prove ownership of his children – won’t any father ?

To keep fathers engaged in this one-sided game, something has to be ‘on offer’. The state, which all but owns the child, here plays a pivotal part. They have the ability via the courts to ration time – ‘Comply and you will get more time with your children’ is the ploy.

For the court to decide how much time a father can spend with his child it has to assess ‘conduct’ and behaviour – something it ignored in divorce proceedings but which are unashamedly and conveniently resurrected for custody matters.

The questions posed by the court relates to ‘how good a father he is’ and this is measured by the amount of money devoted to children to the now dead marriage, and in the case of a second marriage how much money is devoted to children from the earlier marriage.

Providing ‘his’ children with no money or only a small amount of money immediately condemns a father to the status of an uncaring, insensitive fathers not deserving of visitation rights.

14. Rational Choice Theory

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If not in operation at the present time then at some time in the future the state, which already has access to Rational Choice Theory (RCT), will be tempted to implement it.

Rational Choice Theory is based on psychological assumptions and attempts to read the mind of the person the policy is directed towards or against.

The history of Rational Choice Theory can be summarised in this way; it is by no means new to suggest that people act rationally, e.g. Max Weber (1920), but such human actions were viewed as a complex cocktail of both rational and non-rational elements; of traditional or habitual action; of emotional or effectual action; of value-oriented action. Bronislaw Malinowski (1922) and Marcel Mauss (1925) looked at how ‘social exchange’ was embedded in structures of reciprocity and social obligation.

George Homans is said to have pioneered the establishing Rational Choice Theory in sociology in 1961. [22] During the 1960s and 1970s, Blau and then Coleman and Cook extended and enlarged his framework. By 1990 they had developed it into a formal, mathematical model of rational actions.

Basic to Rationality and Social Exchange Theory and all forms of rational choice theory is the assumption that complex social phenomena can be explained in terms of the elementary individual actions of which they are composed.

What distinguishes Rational Choice Theory from other theories is that it denies the existence of any kinds of action other than the purely rational and calculative. Hence, it can be accused of lacking sophistication and adaptability.

Detractors of RCT argue that where social exchanges are recurrent, rather than episodic, it is possible for cooperation to emerge as a rational strategy. They argue the randomness of self-interested rational individuals could not generate a stable social order on an economic basis. For detractor, social order can only be explained through the non-rational but normative element in the individual.[23]
Why should we be concerned about something as abstract as RCT ?

The answer it that firstly, it is already being used against people at present especially in the US and the UK and it is capable of extension into other arenas.

Secondly, the key phrase has already been given namely, that “… where social exchanges are recurrent rather than episodic, it is possible for cooperation to emerge as a rational strategy” between antagonists. Where, in our case, the antagonists are the judiciary and fathers it has potentially serious repercussions and what could be more recurrent than episodic than a father applying time and again to a family court to see his child ? This is how imperatives induce blindness.

Social Engineering already reduces men and fathers to Pavlovian responses in matters of child custody. There is no reason why the courts will not – if they have not already unconsciously done so -overtly deploy this tool to ensure their power remains unchallenged by fathers.

In addition, fathers uniquely endure peer pressure and societal expectations. The urge to “do the right thing” circumscribes men’s ability to forge new solutions. Their pride, their dignity, fetters them as slaves and they are little more than hostages to fortune.

Rational Choice Theory is logical and assumes rational decisions are made by individuals to random socials inputs. The elementary unit of social life is the individual human action. Even an apparently irrational decision can spring from a fundamentally sound choice.

It assumes that people are motivated by money and by gratification in a generally rational/logical manner. This allows for a predictive, model(s) of human behaviour to be constructed. Around 80% of the population, if not more, are presumed to be rational / logical thus when RCT is used it can be rated as very effective.

Economics, where RCT is most common, has long appeared the most successful of the social sciences. The accuracy of its predictive abilities, vis-à-vis human nature, has been the envy of those in other Social Sciences.

Not surprisingly, other social scientists (sociologists, criminologists and political scientists) have adopted Rational Choice principles hoping to improve accuracy and predictiveness in their own field

Today, RCT is already in use by Britain’s Home Office (Ministry of Justice). It is the foundation on which the Home Office’s ‘Situational Crime Prevention’ (SCP) strategy rests.[24] This strategy seeks to guide society in a preferred direction utilising the tools RCT provides.

But whereas the original Rational Choice was economic in nature and assumed people were motivated by money and by the possibility of making a profit, this is not true in other areas of life.

Variations and substitutions have therefore had to be made to the original theory. Instead of profit the model contains the idea that all ‘actions’ are fundamentally ‘rational’ in character; that there is ‘social exchange’; and that people calculate the likely advantages and disadvantages they might experience (i.e. costs and benefits). [25]

For the Home Office, a rational choice perspective assumes that offenders seek to benefit in some way from their offending behaviour. Thus the Home Office was able to modify the original concept and determine that:-

  1. offending behaviour involves decision making (be it rational or irrational)
  2. decisions invite costs and benefits in a criminal’s mind when deciding to commit a crime
  3. that these decision are constrained, i.e. by time, cognitive ability and information etc and therefore the rationality of the offender will be ‘limited’ rather than the ‘normal’ gamut
  4. the costs and benefits for the criminal to avoid repeat offending.
  5. choice selection for an offender is event (crime) specific and therefore policies must be specific not generalised

If economic action involves an exchange of goods and services, then social interaction (‘social exchange’) involves the exchange of approval and certain other valued behaviours.

If crime is the result of active decision making in response to specific situations and/or events counter measures must be equally specific.

This brings us directly to the brooding confrontation between the state exercising its power and the citizen’s rights or more precisely, between the Judiciary and the dispossessed divorced fathers.

If conduct of the courts becomes the result of active decision making by them in specific situations and/or events the counter measures response by fathers to must be equally specific.

Fathers, when dealing with divorce and custody, frequently battle alone before accepting defeat by the system. Occasionally they will be near the final stages when they realise that they are not alone against the system but one man among an army of millions of other fathers.

But by then it is too late, they have been sucked into the system and have become conditioned, like Pavlovian dogs, to follow procedures and humbly apply to court for access/visitation rights.

In the beginning a father is sure the evidence alone will be enough to win the day. When this does not happen fathers remain supremely confident that at the next hearing in a few weeks time any reasonable judge after viewing the data will find in their favour. For months they remain optimistic, but when the next court hearings comes and goes and does not bring that definite breakthrough doubts enter their thoughts.

Only many months, sometimes years, later do they realise the futility of the exercise and know that to ask for more time with their child is a forlorn hope.

To fathers’ advisors these events and reactions are normal. To a Behavioralist the pattern is to be expected.

But to RCT devotees  it is proof that a market exists; proof of an audience, proof of a demand that can be sold to state agencies and institutions. There is room to exploit; to use the carrot and stick, the reward and the punishment. The trick is the clientisation of the citizen outside the magic circle.

The granting of visitation rights diminishes over time and repeated re-applications to courts for restoration of rights only diminishes the amount of time a father spends with his child.

Arguably, this is a direct result of courts not wishing to be seen as impotent in the face of belligerent mothers who are actually setting the agenda and the amount of time they are prepared to concede.

But why are the courts so intransigent, so insensitive ?

  • are they just being stupid and do not know any better ?
  • are they being deliberately difficult ?
  • are they sexually biased against fathers ?
  • are they unaware that their actions ensure fathers remain ‘engaged’ in their game ?

They could, of course, be perfectly well aware of Rational Choice Theory and be simply applying it to make absolutely certain that fathers remain ‘engaged’ in the their game.

If this is the case, one of the antidotes is for fathers to become ‘disengaged’; to ignore courts and court orders and/or to publicly disown their children before the presiding judge. This is the essential element of the Retreat Strategy advocated by Ivor Catt. It takes great courage to be prepared to take that stance and defy threats made by a court. Few have actually adopted it but when they have, they been successful.

The reason for this must be the father’s promise to the judge never to see write or communicate in any way with his children again (he becomes dead to them). This neutralises the mother’s challenges to the court’s authority and places the court on the horns of a dilemma.

The antecedents to the Retreat Strategy can be found in common law. Until quite recently it was perfectly possible in England to “bastardise” one or all of one’s children – perhaps for fear of not fathering them prior to DNA. This effectively disinherited them and the future life style of the man’s wife would be impaired.

One can only imagine the social ramifications of such a course, and it must be assumed it was rarely used. Nonetheless the option was available for use should the need arise.

Another antidote is ‘Collective action’. All RCT based policy is premised on the actions and rationality of the individual. ‘Collective action’ is known to present problems for RCT.

Planning for multiples of isolated individuals acting in concert becomes unpredictable.

Planning for multiples of united individuals acting irrationally but in concert becomes even more unpredictable.

But why should we busy ourselves looking for solutions and antidotes ?

Wouldn’t the best solution be to urge the present corrupt regime to implode and hasten the structure to reach that point ?

At a time when there are hints of a standardised divorce regime across the EU in the future, we should be concerned at the ramifications for other social policy matters.

To work equitably such a system will have to be dumbed down. Those nations with high standards and thresholds required before a divorce is granted will have to acquiesce in the face of those nations with lower standards, for it is within human nature – and the EU mandate – not to impose higher tariffs or barriers but to lower them.

The European Commission as able to write in 2003 that with regards “Changing family policy” the EU is no official definition of the family. [26] Further it discovered that:

  • “ …the family does not figure among the common objectives of the European treaties…”
  • “The European Union has no competence in the field of “family policies”, which come under national remit and are defined and implemented exclusively by the Member States.”

Further extracts can be found at Annex E below.

If divorce is standardised across the EU will child custody follow in its wake ?  What shape and form will such a custody regime take ? What will be its sting, i.e. the price fathers have to pay ?

Why should we believe that this and more might very well happen ?

The reason is that the EU is very much a case of ‘work-in-progress’. It is not yet complete.

Yet at its heart can be found radical feminists and lobby groups sympathetic to their cause. What have men and fathers to offer by way of competition and possible allies ?

I think you know the answer; nothing and very little.

The EU is still evolving from an economic union to a political and thence to judicially one. It will surely follow in the footsteps of the great political and economic blocs.

Pax Romana was followed by Pax Britannica (1815), which was superseded by Pax Americana (1945).

If Europe is to fulfil its destiny as many ambitious politicians seem to want Pax Europa is inevitable.

If that day does dawn. what will it mean for men and fathers if we are not a strong voice at the heart of a distant government ?


Annex A

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Aristotle and the ‘polis’

It is Aristotle, many believe, who offers the most profound analysis of the polis, i.e. the city state and the households within it.

The overwhelming characteristic of the city-state was its small size. This allowed for an amount of experimentation in its political structure and for policy decisions to be made relatively efficiently in response to changing demands.

This was the birth of politics where a body of citizens ruled a political entity (a city state) rather than a city state ruled by a tyrant.

The success of the polis in all its forms lay in the reliability of households to provide the city state with the kinds of citizens it needed to ensure its functioning. In turn, the city state offered the members of its households a unique opportunity for them to flourish.

Compared to the ancient polis household and its relationship to the state, the modern citizenship is a weak reflection of the ancient polis citizenship, and the modern household is but a shadow of the powerful original institution.

Aristotle explains how, in an ideal way, households and state interacted within the polis but he is aware that humanity can flourish even under deviant constitutions, And that even in deficient states the household had its share of moral worth. [27]

Annex B

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  • The tender years presumption in child custody disputes. Roth, A. Journal of Family Law (1976-77) 15:423–61.
  • Towards a Structure of Indifference: The Social Origins of Maternal Custody, Debra Friedman (1995).
  • Custody Decision Making in Historical Context (3 of 14) Princeton University & the Brookings Institute
  • Child custody adjudication: Judicial functions in the face of indeterminacy. Mnookin, R.H. Law and Contemporary Problems (1975) 39:226–93
  • From father’s property to children’s rights: The history of child custody in the United States. Mary Ann Mason, Columbia University Press, 1994.
  • Patterns of attachment: A psychological study of the strange situation. For a summary of pertinent research, see Ainsworth, M., Blehar, M., Waters, E., and Wall, S. Associates, 1978.
  • The custody handbook. Woolley, P. New York: Summit Books, 1979.
  • Mom’s housedad’s house. Ricci, I. New York: Macmillan, 1981.
  • Joint custody and shared parenting. Folberg, J. A custody overview. Washington, DC: Bureau of National Affairs and Association of Family and Conciliation Courts, 1984, pp. 3–10.
  • Surviving the breakup: How children and parents cope with divorce. Wallerstein, J.S., and Kelly, J.B New York: Basic Books, 1980.
  • Fathers, children, and joint custody. Greif, G American Journal of Orthopsychiatry (1979). 49:311–19.
  • The custody trap. Noble, J., and Noble, W. New York: Hawthorne Books, 1975
  • The marriage contract: Spouses, loves and the law. Weitzman, L. New York: Free Press, 1981;
  • Joint custody and shared parenting. Bartlett, K., and Stack, C. Joint custody, feminism, and the dependency dilemma. J. Folberg, ed. Washington, DC: Bureau of National Affairs and Association of Family and Conciliation Courts, 1984, pp. 63–87, for discussions of how the traditional maternal role enforced women’s dependency, and how maternal presumption rules should be replaced with gender-neutral standards which enable women to share parenting burdens with their ex-spouses. See also Bartlett and Stack.
  • Rethinking joint custody. Scott, E., & Derdeyn, A. Ohio State Law Journal (1984) 45:455–62
  • The role of the father in child development. Lamb, M.E., ed. New York: Wiley, 1976
  • The Determination of Child Custody, Children and Divorce Journal, Princeton University & Brookings Institute
  • .An outline of psychoanalysis. Freud, S New York: W.W. Norton, 1949, p. 90.

Annex C

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Fig 4.

Fig 5. Number of Divorces made absolute
House of Commons Research Paper 96/42 et al
1938 1943 1944 1945 1946 * 1947 * 1948 * 1949 * 1950 1951
9,970 14,887 18,390 24,857 15,634 60,254 43,698 34,856 30,870 28,767
1952 1953 1954 1955 1956 1957 1958 1959 1960 1961
33,922 30,326 28,027 26,816 26,265 23,785 22,654 24,654 23,868 25,394
1962 1963 1964 1965 1966 1967 1968 1969 1970 1971
28,935 32,052 34,868 37,785 39,067 43,093 45,794 51,310 58,239 74,437
1972 1973 1974 1975 1976 1977* 1978 1979 1980 1981
119,025 106,003  113,500  120,522   126,694  129,053  143,667  138,706  148,301  145,713
1988 1993 1994 1995 1998 2002 2003 2004
152,139 160,675 154,241 155,739 141,543 147,465 154,284 153,689
Source: 1938 – 45 ‘Annual Abstract of Statistics’, (1953 – 1955), page 60, and ‘Population Trends’ OPCS 78.

[*] Special Procedures or ‘ Quickies’ – introduced in 1947 and again but permanently in 1977.

NB The 1947 record level of divorces was only surpassed in 1971

Annex D

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Fig 6. Number of Divorces and Grounds given England & Wales 1938 – 1950 (ONS)
Year 1938 1943 1944 1945 1946 1947 1948 1949 1950
Petitions filed: 9,970 14,887 18,390 24,857 41,704 47,041 37,075 34,443 29,096
Adultery 4,989 9,513 12,006 17,091 29,939 31,482 20,037 14,666 n k
Desertion 3,909 4,342 5,100 6,227 9,755 12,741 13,752 16,377 n.k
Cruelty 699 736 963 1,223 1,682 2,380 2,791 3,026 n.k
Lunacy 326 277 265 278 283 271 348 384 n.k
Presumed dead 47 31 43 33 52 83 100 86

Rape 5 7 11 11 n.k
Petitions filed by
Husband 4,640 26,429 16,766     
Wife 5,321 15,275         17,677      

Annex E

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‘EU trends’ – Changing family and family policy

Institute for Quality of Life; Raluca Popescu; 2003

[Extract ]

See also

“Family Benefits and Family Policies in Europe”, European Commission, Directorate-General for Employment and Social Affairs, Unit E.2

Researchers, political actors and public opinion in general seem to favor the idea that family has suffered deep transformations for the last decades. The changes occurred were so important that even the concept of family has become ambiguous, covering a wider range of realities than ever before. The typical image of family assumed into scientific or political discourse refers to an institution preserving national values and traditions. On the contrary, family has become a “barometer” for social changes, facing an obvious process of democratization and liberalization, being more and more integrated in global society, influencing the global dynamics for itself.

Changing family policy

The family does not figure among the common objectives of the European treaties, where there is no official definition of the family.

The European Union has no competence in the field of “family policies”, which come under national remit and are defined and implemented exclusively by the Member States.


Concepts of family and households

The definitions of family formulated in relation to social security benefits and associated legislation differ from one country to another. There is a group of states that makes clear distinction between the concepts of family and household and another group that uses two terms indiscriminately for the same thing (EC, 2002). Countries that make a distinction attribute a sociological and even legal value to the term “family” and a strictly economic value to the term “household” because of their cultural heritage (these mainly include southern European countries and UK). The other countries either make no distinction, or use only the term “household”. Only France mentions a third concept – “foyer” (home), considering that it can encompass all existing situations.

In some countries, it is linked with marriage; in almost all countries, it is linked to kinship (blood ties) of some kind (parentage, adoption), and often it is linked to both. In Norway as an extreme case, an unmarried person living alone is considered as fully flagged family.

The answers to the question regarding the role of the term “family” in family benefits are quite divergent between countries that have established a precise definition of term and those that have not. Amongst those that have not, the term “family” therefore does not necessarily enter into the eligibility requirements. For example, some countries like Denmark, Germany, Ireland, Iceland, Norway or UK frequently use term “child” not “family” when defining benefits in their protection systems.

Except the Mediterranean countries, the new forms of family appear to be recognized for entitlement to many benefits and have the same rights and obligations as traditional families, with the exception of homosexual couples. These are recognized only in France, the Netherlands, Norway, Finland and Sweden and are able to adopt children only in a few countries, although a heated debate on the issue is in progress in several countries. A special attention is being paid everywhere to single parent families.



[1] “On Two Juxtapositions: Concept and Nature, Law and Philosophy: Some Comments on Joseph Raz’s ‘Can There Be a Theory of Law ?”

[2] Dec 2008. ECHR rules British government illegally compiled DNA of innocent people.

[3] For example after the monetary collapse and currency exchange chaos of the 1930s and 1940s, the Bretton Woods Agreement co-ordinated the financial system for a bankrupt world and founded the World Bank and the IMF.

[4] Moral turpitude is a concept that refers to conduct that is considered contrary to community standards of justice, honesty, or good morals. See also USA.

[5] Jill Pays allowed police to illegally search the parliamentary office of Damian Green MP without a warrant. Dec 2008.

[6] Roth, A. ‘The tender years presumption in child custody disputes’. Journal of Family Law (1976-77) 15:423–61

[7]From father’s property to children’s rights: The history of child custody in the United States”. Mary Ann Mason, Columbia University, New York pub 1994.

[8] ‘100 Year of Marriage and Divorce Statistics United States, 1867-1967’.

[9] “The Determination of Child Custody” Children and Divorce, Custody Decision Making in Historical Context

[10] An outline of psychoanalysis. Freud, S. New York: W.W. Norton, 1949, p. 90

[11] See Bowlby, J. Attachment. Vol. 1 of Attachment and loss. New York: Basic Books, 1969. Also Bowlby, J. Separation: Anxiety and anger. Vol. 2 of Attachment and loss. New York: Basic Books, 1973.

[12] Lamb, M.E., ed. The role of the father in child development. Rev. ed. New York: Wiley, 1981.

[13] Roman, M. and Haddad, W. The disposable parent: The case for joint custody. 1978.

[14] Scott, E., and Derdeyn, A. Rethinking joint custody. Ohio State Law Journal (1984) 45:455–62.

[15] “The Determination of Child Custody”. Children and Divorce Journal, Princeton University & Brookings Institute

[16]Divorce in England 1950-2000: A Moral Tale” by Carol Smart (1999).

[17] Reader’s Digest ‘Family Guide to the Law’, pub 1971

[18] Law Commission, Supplement to Working Papers 96. HMSO.

[19] “Country houses: the lost legacy”, by Giles Worsley, Daily Telegraph Junes 15th 2002. The permanent loss of irreplaceable historic buildings, gardens and art collections.

[20] The Death of the Grown-Up: How America’s Arrested Development Is Bringing Down Western Civilization, Diana West, St. Martin’s Press, 2007;; The Diana West Website;; The “Global Politician : Truth Doesn’t Need Political Correctness. News, Interviews, Opinions and Analysis that’s independent and informative” website by Norwegian blogger Fjordman;


[22] See

[23] Parsons, 1937

[24] Home Office Also Understanding Crime Displacement: An application of Rational Choice Theory. Cornish, D. and Clarke, R.V (1998)  Criminology Theory Reader.  New York University Press.

[25] RCT hold that individuals must anticipate the outcomes of alternative courses of action and calculate that which will be best for them. Rational individuals choose the alternative that is likely to give them the greatest satisfaction (Heath 1976: 3; Carling 1992: 27; Coleman 1973).

[26] Family Benefits and Family Policies in Europe, European Commission, Directorate-General for Employment and Social Affairs, Unit E.2 and

[27] D. Brendan Nagle is professor of history, emeritus, at the University of Southern California.

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