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‘A critique of Christina Jeppesen De Boer’

November 21, 2009

By Peter Tromp MSc and Robert Whiston FRSA, 21/11/2009

Feminism, and radical feminists in particular, have built upon the natural transition begun in the 19th century towards a more egalitarian society and have, for political gain, claimed these changes for themselves.

They claim that without feminism women would not have any basic rights, conveniently overlooking the Titanic syndrome (‘Women and children first), and the legislation prepared by men to prohibit their work in mines, in onerous factory occupations and long jail terms etc.

By 1970 Feminism viewed ‘the family’ as ‘the enemy’; the great Satan; the oppressor of all women. For feminism ‘the family’ has become a “barometer” by which to measure social change – their induced social change. Some non-feminists feel that the family’ is too one-dimensional and prefer the more comprehensive barometer of increasing male suicide rates.

How can more families falling apart and greater numbers committing suicide be justified in the name of greater democratisation, personal liberalisation and living in a more integrated global society ? This is essentially the argument made by feminists who see the family as merely changing and evolving in an eternal process of self-discovery and self-realisation. Can these delusional rewards be equated with the benefits of children living in broken families ?

Mrs. Christina Jeppesen De Boer subscribes to the feminists perspective of an institution, marriage, which serves only to preserve national values and traditions. The implication must be that she would prefer scientific or political debate to disregard the typical image of the family and throw off the yoke it presents.

Mrs. De Boer is a Danish born feminist lawyer starting out on her career and is married to a Dutchman. She was described in a 2008 article (see Dutch ‘Gazette No. 108’, June 9, 2008) as a lawyer specialising in child law and human rights. Yet she also admitted to a degree of ignorance about Dutch legal matters.

She is therefore unwittingly free to conflate ignorance with expertise and the reader will not know which sentence contains prejudice and which skill. Her view is that while public opinion, researchers, and political actors in general speak favourably of ‘the family’ as an accepted concept, it has, in fact, undergone ‘deep transformations for the last decades’. The very concept of ‘family’, she believes, ‘has become ambiguous’.

Other Unions

Marriage and the family have only become ambiguous and therefore suspect, one supposes, because of the deliberate policy of inventing new forms of union, be it cohabiting or legalising same-sex marriages.

Placing such artificial and contrived unions on a par with spousal marriage only serves to discount the value of the latter.

If society was shocked by the advancement of legalised same-sex unions in the 1990s, will De Boer’s view of a “wider range of realities than ever before” bring forth legalised polygamy and marriage between brothers and sisters in the 2020s ?

In terms of the processional evolution of child law, De Boer’s view probably coincides with some aspects of the British child specialist lawyer, the late Alan Levy QC.

His conclusions regarding the last 150 years of custody and the role of fathers probably parallel hers but he may not come to the some conclusion as she.

Levy contends that the father’s legal position has been considerable eroded vis-à-vis his children together with his authority inside and outside the family. This is true.

Alan Levy QC, who died in September 2004  aged 62, [1] was by contrast to De Boer a very well known and much respected lawyer, specialising in child law, medical law and human rights. During his long legal career he was a great defender of children’s rights. Whenever I met him at Whitehall committee meetings or at seminars I found him a most affable, self-effacing man. He freely accepted the limits of his knowledge and skills in matters outside the family law arena.  To compare and contrast these two advocates will therefore be interesting.

Age brings wisdom and to a 2001 conference arranged by ‘Children Law UK’, Levy freely confessed ‘ignorance’ to his audience of matters that today swirl all around the issue of family courts and human rights – where all accepted he was the expert. [2]

In his address Levy said;

“Fathers in the past have had an extremely strong and authoritarian position as regards their children and their wives”

“ .. .From a subjective and selfish point of view the father in the Victorian age was king it seems to me, and it was a rule by divine right, or certainly with the approval of the courts.”

Levy’s address later contended that this semi divine right of a father’s legal position had, over the last 150 years, been considerable eroded vis-à-vis his children together with his authority inside and outside the family. This is probably true all across Europe.

De Boer’s view would probably coincide with Levy’s but probably for different reasons.

Centralised Control

Time then for a ‘reality check’ with history. The Victorian age, as indeed was the preceding Georgian age (and ad infinitum), was one of ‘small government’. If we use Great Britain as a model, the most economically advanced nation of the 19th century, we see a great reluctance to become involved in private matters; a situation that was to reverse after 1945.

Feminists forget (or simply do not know) that only in the second half of the 20th century has the world witnessed ‘big government’ the ‘command economy’ and the growth of centralised control.

In Britain any administration prior to the 20th century that could guarantee its ‘writ’ ran to the extremities of the nation was doing exceptionally well (see Dublin and the origins of ‘Beyond the Pail’). Even the Mogul emperors of China could not guarantees uniformity within their borders.

The first of these ‘big government’ with centralised control being the Soviet Union from 1920 onwards, followed by the command economies of Italy and Germany. All three embraced socialism in its various forms.

Victorian women, who are intrinsically no different from women today, were in no position to defend family rights.

Yes, women can destroy a family, as feminists have done, and women can witness family destruction by third parties, but ‘No’, they cannot defend their children or themselves by deterring aggression, neutralising threats with counter threats and meeting aggression with aggression as pictures from, for example, Darfur and Argentina’s ‘disappeared’ vividly illustrate.

It makes sense in a ‘small government’ world for the onus of child care and guardianship to be entrusted to a person who can not only perform the duties but ensure they can be performed on their behalf. Economically this meant men; judicially this also meant men -for who would jail a mother for gross dereliction of care towards her child and treat a similarly wayward father with the same leniency ?

The resulting ‘oppression of women’ that is bandied about by feminists came, they forget, with a very high price tag for men.

On the obverse of the coin, if a father was grossly derelict in his basic duties towards any of his children the court would have no compunction in jailing the father. His rights could be suspended or interfered with permanently. His children could be made ‘wards of court’.

How many judges in Victorian times, or indeed now, would be prepared to either jail a mother or permanently suspend her rights and role as a mother ?

Therefore, one has to ask how can a legal system effectively ensure child safety and the deterring and rectifying of child abuse without ‘nationalising’ children if mother custody prevails ? That, surely, is the situation we have fallen headlong into.

Making Comparisons

Therefore, I wish to turn around the argument advanced by De Boer and aim her own bullets at her position.

Families thrive when governments do not interfere according to a new international comparison of family policy published by the independent think-tank Civitas.

Comparing the state of ‘the family’ in secular Sweden, Catholic Italy and Britain the renowned researcher Patricia Morgan who observes that ‘the family’ does best when governments don’t try to nationalise child-rearing;

“One of the most striking points of comparison is the extent to which the state interferes in family life, especially the rearing of children, in each of the countries.” [3]

Governments that do try to nationalise child-rearing and do try to interfere/regulate how children are socialised are invariably of the big government variety.

This would be tolerable if the premise was that the state makes a good parent – but the state does not.

De Boer says it is a mistake for more and more countries to let parents choose joint custody after divorce and she cites among others the  1998 changes in the Netherlands.  The premise that it is ‘in the interest of the children’ is not true, suggests De Boer.

What she advocates, one suspects, is a rollback of the law in the same manner that Australian feminists want a reversal of custody laws to the pre-2006 situation.

New to Holland and Dutch law, De Boer confesses that her views “would never get much attention” in her native Denmark but maintains that ‘in the Netherlands, whether they like it or not’ …. ‘parents [have] joint parental custody’ after a separation.

She sees automatic joint parental custody of children in the Netherlands is a bad thing. De Boer finds the current Dutch system fails to address children’s primary needs: namely a secure environment in order to grow.

“A situation which is not always the best interests of the child. This is especially true for children from socially vulnerable families.”

The counter argument to the above assertion is simply what governmental or judicial system exists that does not fail to address and protect children fully ?

And in rebuttable to her earlier claim it is wholly disingenuous to claim that children from socially vulnerable families are not adequately protected in joint custody scenarios.

Firstly, joint custody means two parents can monitor whether a child is being abused/ neglected or not. Gross examples of child abuse and child murder are predominantly found in sole mother custody arrangements where fathers are kept at arms length.

Secondly, why focus on the tiny percentage of high conflict families with dysfunctional children and enforce an artificial regime suitable for them on ‘good enough’ parents and normal children ?

Government as Parent

All governments, be they of big and small variety, make bad parents. All governments since 1950 have inexplicitly become intoxicated by the prospect of running other people’s lives. Yet the record of state-run child institutions is one of abuse, degradation, drugs, criminality and unhappiness in adult life.

Both Melanie Phillips and Prof. Robert Rowthorn have identified a major shift in emphasis in family law towards the ‘welfare of the children’ paradigm .This has acted as a kind of Trojan horse in the battle to hold onto ‘family values’ and keep the family stable (see Carol Smart). [4]

Smart portrays their perspective (Phillips and Rowthorn), as the child being returned to the virtual status of a marital asset which is awarded to the innocent spouse.

From the perspective of their opponents, e.g. De Boer and Smart, the child is a de facto ‘ward of the state’ and the state must decide its future – much as in the early Soviet years where all men and women were counted only as “units of production” owned by the state.

Therefore, barring the new ‘pseudo’ sciences of sociology, psychology and various modern ideologies, it is entirely appropriate that in the 18th and 19th century – lacking these ‘sciences’ – measures to protect children should be couched in terms of ‘divine right’, ‘natural justice’ and the ‘sacred right of a father over his children’ and that these notions should receive the approval of the courts.

Levy’s address then went on to quotes a Court of Appeal judge, Lord Justice Bowen [the sentences have been separated to enable clarity]:

“It must be remembered that if the words “benefit of the infant” are used in any way but the accurate sense, it would be a fallacious test to apply to the way the court exercises its jurisdiction over the infant by way of interference with the father.

It is not the benefit to the infant as conceived by the court, but it must be the benefit to the infant having regard to the natural law which points out that the father knows far better as a rule what is good for his children than a court of justice can.”

This is ‘small government’ in action, namely unless it can do better and the situation is not gross or offensive, it is better to leave matters as they are.

Levy in his address cites a high court case of 1848, where a judge was of the opinion in his summing up that the dereliction by a father must be gross before the court will consider stepping in.

Levy’s citation is here again broken into manageable sentences by simply setting them out clearly. Items 1, 2 and 3 list the defects in this particular man’s character;

1. A man may be in narrow circumstances, he may be negligent, injudicious and faulty as the father of minors.

2. He may be a person from whom the discreet, the intelligent and the well disposed exercising a private judgement, would wish his children to be for their sakes and his own removed.

3. He may be all this without rendering himself liable to judicial interference and in the main it is for obvious reasons well that it should be so.

Item 1 has the father described as having a ‘narrow’ view of life; of perhaps being negligent in his duties to his children (aged under 21).

Item 2 contrast his actions with a ‘person of quality’ or from polite society who might take a very deferent stance as to his conduct.

Item 3 concedes that he may (not is), all the things he is accused of, yet the court recognises that the sanctity of the family is beyond its reach unless the misconduct is severe and gross. In the judge’s view this man is on the precipice of the ‘good enough’ parent. As such he can do nothing to interfere with the man’s human rights – something De Boer, a lawyer specialising in human rights, should not ignore.

4.Before this jurisdiction [and that was the high court jurisdiction] can be called into action between them it must be satisfied that not only that it has the means of acting safely and efficiently but also that the father has so conducted himself or has shown himself to be a person of such description or is placed in such a position as to render it not merely better for the children but essential to their safety or to their welfare in some very seriously important respect that his rights should be treated as lost or suspended should be suspended or interfered with.

The judge of 1848 shows himself superior to judges and lawyers of today for he gives the classic, measured, balancing of rights so often trampled upon in today’s form of justice.

The court, he believes, cannot intervene where it cannot supervise the aftermath and ensure its actions result in safety and not more abuse or neglect. In 1848 a judge could not be sure of this – and it is true even to this day.

Furthermore, such a safe course can only be undertaken where the father’s behaviour renders him unsuitable (not, not just a parent with poor parenting skills).

Only after satisfying those criteria should a court contemplate action for which it might fail to deliver and might itself be subject to criticism, namely by providing a situation that is not just ‘better’ for the children but essentially ensures their greater safety and/or their welfare.

If De Boers is serous in her proposition let her first answer successfully, if she can, whether any mother should have been given custody in the last 30 years based on the same criterion set out for fathers above ?

Worthless Guarantees

Unless a court can guarantee these fundamental it has not right to suspend the rights of a fathers who is discharging his obligations to the best of his ability. Indeed, the introductory passage to the summing up confirms this view:

“It is substantially impossible to ascertain a watch over their performance, nor could a court of justice usefully attempt it.”

Levy was of the opinion that there was never any danger of Victorian judges attempting ‘social engineering’. Court thought that to ignore these rights would be to set aside the whole course and order of nature and such a course should not be lightly entered upon. A degree of prudence that is lacking in today’s courts and yet outcomes for children are no better, and arguably, are now worse.

Fundamentally, De Boer argues for a big government approach believing that government, not parents, know best. A point negated by Prime Minister Rudd’s profound apology (Nov 2009) to children from institutions transported to Australia in the 1950s (and similar governmental abuse abound through recent history). [5]

De Boer would do well to recall as Levy reminded his audience of the words of Lord Justice Bowen in the Court of Appeal:

It must be remembered that if the words “benefit of the infant” are used in any way but the accurate sense, it would be a fallacious test to apply to the way the court exercises its jurisdiction over the infant by way of interference with the father. It is not the benefit to the infant as conceived by the court, but it must be the benefit to the infant having regard to the natural law which points out that the father knows far better as a rule what is good for his children than a court of justice can.

It is this distinction, i.e. the imagined benefit to the infant as seen by the court, versus the actual benefit to the infant of an intact family, which has been overlooked by modern academics and jurists.

The claims of feminism to have benefited the lot of women and children by pushing for reforming  legislation is a false claim when reforms had already begun in the 19h century, e.g. the Matrimonial Causes Act 1857, the Custody of Infants Act 1873, the Guardianship of Infants Act 1886 and the Guardianship of Infants Act 1926.

All of these brought fundamental changes. This is the natural transition alluded to in the opening paragraphs.

Fathers and Shared Custody

In her thesis on  ‘Joint Custody’, the Ph.D. candidate at the Utrecht University is quick to dismiss the tens of thousands fathers who want a better deal to see their children as a insignificant minority group but omits to state that the numbers of children ‘at risk’ in ‘high conflict’ families is minute – probably not even 1% of households.

CAFCASS in Britain estimates that around 5% of family disputes are ‘intractable’, i.e. not easily settled, and this figure crops up in other countries. Were we to estimate that 20% of this sub-group were ‘high conflict’ families is would be over generous (5% x 20% = 1%). Yet De Boer uses this ruse to discredit shared parenting and greater father involvement.

She sees dangers and children emotionally unsettled by having joint residence and shared custody.

It is therefore ironic that a study from her native land of Denmark shows fathers to be more than adequate as single parents than mothers (http://www.nccg.org/W-News-003.html). The study was conducted by senior researcher Mogens Nygård Christoffersen of the Danish Social Research Institute in Copenhagen.

Christoffersen’s study was of 478 fathers and 532 mothers with children in the age group 3 to 5; they were a statistically representative selection of the Danish people; they were interviewed by telephone or by visits to the home; the response was 89%. The statistically representative showed that 94% of children from broken homes live with their mothers and only 6% live with their fathers.

This corresponds with the gender breakdown provided by ONS figures. Christoffersen’s study found that the judicial system did not aid father custody, rather, a third of the fathers (approx 33%) had become single parents by default, i.e. wife had died or wife unable to care of their children. Again these figures are echoed by ONS data for Britain.

“The broad conclusions of the research (listed below) provoked a violent emotion-charged debate which lasted 3 to 4 months inside Denmark.

  1. Better contact. Christoffersen’s found children who grew up with a single father had not only better contact with all four of their grandparents but also with their mother when compared to those who lived alone with their mother.
  2. Fathers who were single fathers were less stressed than mother and seldom hit their children. Mothers did not resist the use of smacking as a method of punishment of their children.
  3. Single fathers are usually less pressed for time and have fewer psychosomatic reactions to stress than mothers.
  4. “Parents who are appreciated at work actually have more time and energy for their children (in the UK, ONS data has long shown 70% of single fathers work full time and less than 50% of single mothers work). The suggestion by the Danish investigation of 3-5 year old children’s growing up needs has aroused a furious debate in Denmark.
  5. “Father is best: A list of other analyses support the contention that children are best served by living with their father, according to the research undertaken by Morgens Nygård Christoffersen (Danish Social Research Institute in Copenhagen).

A furious debate erupted in Denmark when Christoffersen published his findings that favoured father custody. The general reaction was negative. The study, said Christoffersen;

“. . . . was regarded as a personal opinion in the debate on where children should live after a family breaks up, and they didn’t care about the results”

Had Christoffersen’s study shown women as more beneficial to young children, one imagines he would have been feted and applauded ?

The cultural hegemony that produces collective thinking and gender priorities played out in both Britain and Norway when Christoffersen presented the results of his research. In August 1997 he presented his work to the University of Essex in London and on 19th Sept to a conference organised by the Norwegian Research Council (‘Family Changes – Fatherhood and Children‘).

Possible Solution ?

Levy was of the opinion, in the years before his death, that Articles 5 and 8 of the United Nations Convention on the Rights of the Child held the best solution for an equitable division between mothers and fathers which he recognised as biased in favour of mothers (despite the assurances made by Baroness Scotland to him in 2001 that the bias would be corrected).

Article 5 states that governments must respect the rights and duties of parents and not just focus on the child to the detriment of the parents. Furthermore, Article 5 recognised the evolving nature of a child’s needs and wants and that it was the right and duty (note not ‘responsibility’ which has an ephemeral, wishy-washy definition in English), that both parents should give ‘appropriate direction and guidance’.

The 1995 Act in Scotland is said to more closely follow the above tenets than the English 1989 Act.

It is possible that something is being lost in tranlastion but Christina Jeppesen De Boer could not be more wrong when she states:

“In the media you often read about fathers being sad, e.g. Fathers4Justice and similar organizations, and of mothers who want to keep their children away to the father.

You read about it, but the media coverage is not based on research.

It’s a persistent myth that there are many fathers [who want more involvement with ?] their children and children themselves who want the possibility to stay [with their fathers].

But that myth can be punctured – there is little research in the Netherlands for such a case.”

It may be is sheer speculation but had De Boer been born Dutch and not Danish, her command of English with which everyone in the Nederland is gifted, would have opened up her mind to new horizons that might have included the Bauserman meta-analysis of 33 research papers which she appears not to know or weigh in her deliberations. [6]

She might have been able to access all the surveys from 2000 to 2009 that disprove here opinions – the latest one of these was commission by the firm of lawyers Mishcon de Reya (published Nov 2009).

That particular poll was carried out to mark the 20th anniversary of the Children Act. In it the authors state that the Children Act 1989 is “not working” despite its good intentions.

The poll, of 4,000 parents and children, validated what fathers groups have been claiming and complaining about vis-à-vis the Children Act of 1989, namely;

  • 19% of children said they felt used in the separation
  • 38% of children never saw their father again once separated
  • 50% of parents admitted putting their children through an intrusive court process over access issues and living arrangements
  • 49% admitted to deliberately protracting the legal process in order to secure their desired outcome
  • 68% confessed to indiscriminately using their children as ‘bargaining tools’ when they separated
  • 20% of separated parents admitted that they actively set out to make their partners experience ‘as unpleasant as possible’ regardless of the effect this had on their children’s feelings

Is De Boer seriously suggesting that this state of affairs be allowed to continue for the sake of 1% of dysfunctional families ?

If so the smallness of numbers would ensue them one-to-one attention and to hold up the advancement for 99% of separating families is dubious virtue, feeble-minded and most unconvincing.

END


[1] The Guardian, Wednesday 29 September 2004. Allan Levy, QC, “was a passionate advocate for children’s rights and the leading expert on child law at the English bar  has died of cancer”

[2] Alan Levy, QC, “Sons and Fathers” A Challenge for Youth and Family Court, ‘Children Law UK’ conference, London  7th February 2001, (formerly British Juvenile and Family Courts Society)

[3] ‘Family Policy, Family Changes’ by Patricia Morgan. http://www.civitas.org.uk/press/prcs43.php.

[4] ‘Divorce in England 1950-2000: A Moral Tale’ (1999) http://www.leeds.ac.uk/cava/papers/wsp2.pdf.

[5] 1990/1991 ‘The Pindown Inquiry’; 2000, ‘Waterhouse Report’; 2008, Haut de la Garenne, Jersey, inquiry.

[6] The recurring and distinct theme in all the separately authored papers was that children in shared parenting arrangements exhibited higher levels of self-worth etc. Robert Bauserman, Uni. of Maryland (American Psychological Association, 2002).

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