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“Sons and Fathers”

November 24, 2009


“Sons and Fathers” is as relevant today as it was in 2001. Furthermore, it is relevant to legal systems across Europe and North America as all share the same basic principles.

Alan Levy Q.C. was a very well known British lawyer, specialising in child law, medical law and human rights and was a great defender of children’s rights.

This is his assessment of the fathers’ role in ‘the family’ as he saw it in 2001, and how he saw it developing together with promised government policy changes – much of which has failed to materialise 8 years later.

“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)

Legal Overview of Fathers in the Family – Human Rights

By Alan Levy Q.C.

I want to give a brief legal overview of parenting in this age of human rights, now that we have the Human Rights Act, and what I have to say is confined to Family Courts. I have had my ignorance underlined by those various references to how many papers come out each year which I have not read, so I declare that ignorance at the outset.

Fathers in the past have had an extremely strong and authoritarian position as regards their children and their wives. The last hundred and fifty years has witnessed a very considerable erosion of the father’s legal position and his authority in or outside the family. 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.

In a case in 1848 a high court judge opined that, and I am afraid that some of the judges, like most lawyers, go in for lots of subsidiary clauses but I think it is quite useful to get the flavour of the particular language:

The acknowledged rights of a father with respect to the custody and guardianship of his infant children are conferred by law. It may be with a view to the performance by him of duties towards the children and in a sense on condition of performing those duties that there is great difficulty in closely defining them.

I want to come back to that observation a bit later because I think it is very relevant in modern times. He went on:

It is substantially impossible to ascertain a watch over their performance, nor could a court of justice usefully attempt it. A man may be in narrow circumstances, he may be negligent, injudicious and faulty as the father of minors. 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. 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. 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. If the word essential is too strong an expression it is not much too strong.

So I don’t think there was any danger of Victorian judges going in for social engineering. In a notorious case in 1883 one judge said that the court had no right to interfere with the sacred right of a father over his children. Another judge said that the only cases where the court will interfere with the rights of a father over his children are where it is shown by his conduct that he is extremely unfit in any respect to exercise his parental authority and duties as a father. This was typical of the courts of the time. The court thought that to ignore these rights would be to set aside the whole course and order of nature.

Now I have one or two more quotes and I dwell on this because I think in a way it is important to realise what the situation actually was years ago. I think there has been, no doubt quite rightly in most instances, a considerable reaction against this over the years but I do think we have to ask ourselves the question about contact after a split between mother and father, and whether we really haven’t over-reacted to some extent.

A famous judge, Lord Justice Bowen, a member of a particular Court of Appeal had this to say,

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.

Well I am sure there are many fathers who would echo that in the twenty first century but I think we, hopefully, have moved some distance from literally applying it in every case as a natural law.

Whilst we have moved on somewhat as far as the welfare of the child is concerned, the rights of the father certainly predominated. I have gone back to the 19th century, and the further one goes back, the eighteenth century looks at legal writers like Blackstone and others, the father was absolutely in charge and the welfare of the child, certainly until the beginning of the last century, or reasonably well into it, was a subsidiary consideration.

In 1886 the Guardianship of Infants Act was passed and the mother was entitled to apply to the courts, who might make such orders as they thought fit as to custody, having regard to the welfare of the infant and to the conduct of the parent and to the wishes, as well of the mother as of the father. So there was a beginning of a real shift. The mother was thus given equal rights with the father and the welfare of the child is, for the first time, enshrined in statute and given a preferential position.

It has been said that there is a remarkable dearth of legal authority after the beginning of the twentieth century until about 1926. We may all have come across, I suspect, references at some point to a fairly old statute, but in 1925 the Guardianship of Infants Act was passed and was a real landmark because for the first time it made the welfare of the infant the first and paramount consideration. I shall come back to that phrase and how I think it may interact with the Human Rights Act in a moment or two.

In the statute it said that the court shall not take into consideration, whether from any other point of view the claim of the father, or any right at common law possessed by the father in respect of such custody, upbringing, administration or application as superior to that of the mother, or the claim of the mother as superior to that of the father. So the modern position was reached, although it should be noted, and it is a startling fact, that it was not until 1973 that mothers could exercise authority over children independently.

I think the modern position, the welfare of the child being paramount, which plays such an important part in court cases now, was not always so. I think it is unlikely to be modified by the Human Rights Act of 1998 which, of course, has made the European Convention on Human Rights part of our domestic law. The convention has as its core, of course, peoples’ rights and the research which we have heard about today I found fascinating. I noticed how much rights was referred to, the right of the father to contact, or, perhaps you could put it another way, the right of the child to contact or the father’s and the mother’s rights to this, that or the other.

There is no doubt that we are in an age now where rights have suddenly become respectable. Up until, certainly very recently, one was talking about responsibilities and duties but now, certainly in the courts, it is respectable to refer to rights again. But how is it going to affect the position, particularly the father’s position? Under article 8 of the European Convention which you will recall is the right to respect for private and family life, there have been various decisions at Strasbourg, the old European Commission and the European Court of Human Rights. They have made clear in a number of leading cases that particular reports will be attached to the best interests of the child which, depending on their nature and seriousness, may over-ride those of the parents. One English House of Lords judge has already offered the view that there is nothing in the convention which requires the courts of this country to act otherwise than in the interests of the child.

Whilst noting in passing that there is yet another expression, in Article 3 of the U.N. Convention on the Rights of the Child, namely:

in all actions concerning children whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies the best interests of the child shall be a primary consideration.

One has to recognise that this is something of a verbal morass and room for forensic pedantry, but I suspect that the importance of the child’s welfare will not in reality diminish in English law. Whilst there may actually have to be a decision, because nowhere in the European convention does the word “paramount” appear, it may well be a rather, and I personally hope and I am sure many of you do, that, as far as children are concerned, it turns out to be an arid debate. I personally do not think that in particular fathers or mothers or other carers, will suffer.

I think it can just about still be said, echoing Pat Scotland’s observations this morning, that traditional family life is made up of a married couple and their children. There have, of course, been great inroads into the traditional concept, made by separation, divorce, fostering, adoption, remarriage, unmarried birth and reproductive technology. It can certainly now be argued in my view, and I would obviously be interested later to hear other views, that it can be argued that the father has overall had, in the court setting, and I emphasise in the court setting, his position steadily undermined over the years in certain particular areas. One of the “fashionable” areas at the moment is the question of contact and where there are real disputes and great difficulties.

In one area, as we have heard, we are promised reform. In England and Wales the law governing relationships between parents and children has been slow to recognise the parental status of unmarried fathers. This is of course in marked contrast to the position of married fathers. For most purposes the Children Act 1989 doesn’t distinguish between married and unmarried parents, and it aims to encourage both parents to continue to share in their children’s upbringing even after separation or divorce. The Children Act replaced, it has been, said the traditional approach to parents rights with a new concept of parental responsibility. Confusingly, however, in my view the definition of parental responsibility is, as we know, all the rights, duties, powers and responsibilities and authority which by law a parent has in relation to the child and his property. I want to come back to parental responsibility in a moment.

The Act did not put married and unmarried fathers on a completely equal footing. In practical terms the possession of parental responsibility probably has little effect on a father’s role in the day to day upbringing of his child at least while the parents are living together or co-operating in their arrangements for the children. In those situations a father’s authority in matters such as the child’s education or medical treatment is unlikely to be an issue. Lack of parental responsibility becomes a problem when the relationship with the mother breaks down, when the mother is unable to exercise her parental responsibility because of, for instance, illness or accident. The unmarried father may then be in difficulty in respect of, for example, adoption proceedings or proceedings regarding The Hague Convention on Child Abduction as well as in respect of medical and education matters.

This, what can be seen as a discriminatory situation, we are told will be set right, and, if I may say so, Baroness Scotland gave a model political answer to the question this morning.

To come back to the central matter of parental responsibility, what are the parental responsibilities being referred to? You will recall in the nineteenth century case I mentioned earlier, the judge referred to the father’s performance of duties towards the children, and added that there was great difficulty in closely defining them. The definition in section 3 of the Children Act a century later, as we have seen, doesn’t help very much: all the rights, duties, powers, responsibilities etc., which by law a parent of a child has in relation to the child and property, yet there is no definition. The failure to define the rights, duties etc., has led one commentator to complain of the complacency over the existing state of family values.

We have to turn to Scotland and the Children’s Scotland Act of 1995 for assistance. This legislation is said to have been influenced by articles 5 and 8 of the U.N. Convention on the Rights of the Child and before briefly looking at the Scottish legislation it may be useful to look briefly at those relevant articles.

Article 5 states that:

State parties of government shall respect the responsibilities, rights and duties of parents or where applicable the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide in a manner consistent with the evolving capacities of the child appropriate direction and guidance in the exercise by the child of the rights recognised in the present convention.

and that, like so many parts of international conventions, is a model of tact and vagueness .

Article 18 paragraph 1 states that:

State parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or as the case may be legal guardians have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.

That is what is said to have had a great influence on the Scottish Act. Overall, I do not think the law can contribute a great deal to the very difficult problems that do arise, particularly in respect of certain situations of the father but I will come back to my perhaps rather cryptic conclusion in due course. I think it is very interesting to look at the Act because but I do think it helps if this vagueness or this smokescreen is penetrated and somebody does try to spell out what duties and responsibilities are, if only to give some actual framework to get ones teeth into. Ironically, nothing of this appears in the Children Act 1989, under the same parliament, so perhaps it is a sign of progress in the Children’s Scotland Act 1995 that it has some most interesting provisions, which I am sure many of you know of, but I don’t think have been widely disseminated.

The first section says that a parent in relation to his or her child has the following responsibilities, and child in this Act is a child under the age of sixteen:-

a) to safeguard and promote that child’s health, development and welfare

b) to provide in a manner appropriate to the stage of development of the child direction and guidance to the child

c) if the child is not living with the parents to maintain personal relations and direct contact with the child on a regular basis and

d) to act as the child’s legal representative but only in so far as – and here is a familiar exclusion or potential exclusion clause – but only in so far as client compliance with this section is practicable and in the interests of the child.

One then has section 2 of the Children’s Scotland Act which is headed “Parental Rights” and this says that a parent in order to enable him or her to fulfil their parental responsibilities in relation to his or her child has the right:

a) to have the child living with him or otherwise to regulate the child’s residence

b) to control, direct or guide in a manner appropriate to the stage of development of the child, the child’s upbringing

c) if the child is not living with him or her to maintain personal relations and direct contact with the child on a regular basis and again to act as the child’s legal representative.

There is also a section, as in the Children Act, to provide for the acquisition of parental rights and responsibilities by a natural father when that is necessary.

The final section I want to refer to in the Scottish legislation which is a very interesting one about the views of children. Section 6 says a person shall in reaching any major decision which involves:-

a) his fulfilling or her fulfilling a parental responsibility or the responsibilities mentioned earlier in the Act or

b) in exercising the parental right have regard to so far as is practical to the views if he or she wishes to express them of the child concerned, taking account of the child’s age and maturity and to those of any other person who has parental responsibility or parental rights in relation to the child and wishes to express those view and … without prejudice to the generality of this subsection a child twelve years of age or more shall be presumed to be of sufficient age and maturity to form a view.

To me, it is interesting that it took until 1995 for parliament to be begin to spell out parental responsibilities. I think in a sense it reflects a widely held view that government intervention, to use those words in the U.N. Convention of the Rights of the Child, even by direction or guidance except in exceptional circumstances will provoke strong hostility, especially if the legislation threatens to interfere with the child/parent relationship. We should not forget that, in 19th century laws restricting child labour and introducing compulsory education, those laws were opposed on the grounds that they constituted an unacceptable interference with family responsibilities. Although we have moved a good deal away from that, I suspect there are still some very strong feelings about government interference, as it is seen, and the extent of it. It may be that the spelling out of parental duties and responsibilities will help in promoting parenting skills and meet some of the gaps which exist in knowledge and practice, which result in court appearances whether civil or criminal which hopefully in some situations could be or may be avoided.

I want to turn finally to the European Convention on Human Rights, which I have briefly referred to already. In respect of the sort of problems which have been discussed today, I do not think that anything revolutionary is going to come out of the Human Rights Act. A new vocabulary has to be learned for instance. Words such as necessary in a democratic society, proportionality, for the protection of the rights of freedoms of others, right to respect for private and family life, and a right mind set will be used.

In a sense, many of the problems whether it be contact or perhaps going to another extreme adoption, one has been putting forward for many years. For example, if it were an adoption case, that the adoption is over the top and really should not take place in these circumstances; and that the adoption agency or the local authority is wrong. Now, we are simply changing our vocabulary to say that it is unnecessary in a democratic society or it is disproportionate, and it seems to me essentially, that various rights have been balanced in the courts for many years and that is a process that will have to continue.

I think the act will be important, and it may be particularly important for fathers, in certain positions, that their rights are emphasised but that they are not paramount. Their rights are not, by the declaration of them, the answers to the problems because of course others have rights: mothers have rights, children have rights, other carers may have rights. I think the convention will provoke some changes and there will be some ingenious points but I cannot help feeling that the challenges we are discussing today are generally ones that need a human rather than a legislative solution. Whilst the law has a part to play as a referee in many situations, personally, I do not think the ignorant lawyer, I will not say judge, not having read all these papers and trying to rely on the legal principles, will get very far. These are, after all, very difficult human problems and I think in many ways it is other professions who have to try and solve them.

One Comment leave one →
  1. November 25, 2009 5:56 am

    Thanks – Up on; Equal Parenting @ Ration Shed BLOG

    Onward – Together – Jim

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