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Residence and Contact Disputes in Court Volume 2 Residence and Contact Disputes in Court Volume 2 Carol Smart, Vanessa May, Amanda Wade and Clare Furniss University of Leeds with Kaveri Sharma and Jason Strelitz DCA Research Series 4/05 June 2005 Residence and Contact Disputes in Court Volume 2 Carol Smart, Vanessa May, Amanda Wade and Clare Furniss University of Leeds with Kaveri Sharma and Jason Strelitz The Research Unit, Department for Constitutional Affairs, was formed in April 1996. Its aim is to develop and focus the use of research so that it informs the various stages of policy-making and the implementation and evaluation of policy. Crown Copyright 2005. Extracts from this document may be reproduced for non-commercial purposes on condition that the source is acknowledged. First Published 2005 ISBN 1 84099 060 0 Acknowledgements During the various stages of this research, the court staff at the three courts offered us invaluable help. We would like to thank all the staff whose already heavy workload we no doubt increased for the extreme kindness, patience and practical help they extended to us. We extend our heartfelt thanks to Kaveri Sharma and Jason Strelitz who conducted some of the interviews. We are indebted to Angela Jackman and Nichola Hutchinson for transcribing the interview tapes. We also acknowledge the support of our Advisory Committee. Our greatest thanks, however, go to the parents we interviewed. We are aware that for most of them, the interviews touched on very painful memories. We are grateful to the parents for the generosity they showed us by sharing their at times distressing accounts with us. Authors Professor Carol Smart is Director of the Centre for Research on Family, Kinship & Childhood at the University of Leeds. She is currently involved in a number of studies into aspects of family life and childhood, and has recently completed two projects on children’s experiences of post-divorce family life. Her main interests span issues of gender, intimacy and family life, childhood and socio-legal studies. Dr Vanessa May is Research Fellow at the Leeds Social Sciences Institute at the University of Leeds. Her research interests include lone motherhood, post- separation/divorce family life and family law, as well as mixing qualitative and quantitative methodologies in family research. Disclaimer The views expressed are those of the authors and are not necessarily shared by the Department for Constitutional Affairs. Contents List of tables List of figures Executive summary …………………………………………………………………….… i Chapter 1. Introduction to the study ……………………………………………….. 1 The aims of the Children Act 1989 ………………………………………………………. 1 The data …………………………………………………………………….……………..… 3 The questionnaire data ……………………………………………….…………… 3 The interview data ……………………………………………………………….… 5 A note on analysis ………………………………….………………………………. 8 Chapter 2. Putting the children first ………………………………………………... 9 Disputes over children 10 i Poor standard of care ………….………………………..………….… 11 ii Stability ………………..…………………………………………….…. 12 iii Risk of harm ………….………….………………………………….…. 13 iv The children’s wishes ..…………………………………………….…. 15 'Spousal' disputes ……………………………………………………………………….…. 17 i The problem of property and financial matters ……………….….… 17 ii The problem of broken trust and 'bad' behaviour …….………….... 21 iii The problem of new partners ………………………………….….…. 23 Discussion …………………………………………………………………………….……. 24 Chapter 3. The court process and its outcome …………………………………... 26 The court process ………………………………………………………………….………. 26 Indications from the questionnaire sample …………………………………….... 26 Indications from the interview sample ……………………………………………. 27 i "The courts are not looking at the relevant facts" ……..……….….. 27 ii "The courts work to a formula" ……….……………….…….……….. 28 iii "The courts are biased" ……………….…………………….……….. 29 iv "I didn't have enough time to put my case" ……..……………….…. 31 v "There isn't any support" ……………….…………………………….. 33 vi "There's no justice" ….………………………………………………… 33 The court outcomes ………………………………………………………………………… 34 Indications from the questionnaire sample ……………………………………… 34 Indications from the interviews ……….…….…………………………………….. 37 Discussion ……………………………………………..……………………………………. 40 Chapter 4. The parenting contest …………………………………………………… 43 Constructions of ‘good’ and ‘bad’ parenting ……………………………….….…………. 44 i Caring for the children's material needs …………..………….…….. 45 ii Caring for the children's emotional needs ………..……………….. 46 iii Providing a suitable environment in which the children can grow up 48 Gender, parenting and social values ………………………………….…………………. 51 Constructions of children ………………………………………….………………………. 54 i Children as props …………….…………………….……………….… 54 ii Children's involvement in the dispute ………………….……….…... 56 iii Children as individuals in their own right …………………….…..…. 58 Discussion …………………………………………………………………………………... 59 Chapter 5. The value and the standing of the court ……………………………... 61 The value of the court ………………………………………………………………..…….. 61 The questionnaire data ………………………………..………………….. 61 The interview data …………………………………………….…………… 62 i Continuing high degree of conflict ….…………………………..….… 62 ii Abating conflict ……………………….………………….………….... 65 iii Low level of conflict ………….…………………….………….………. 66 The standing of the court ………………………………………………………….………. 67 i The court as enemy ……………………………….………………..…. 68 ii But the court can be benevolent - or even useful too ………….….. 73 Discussion …………………………………………………………………….…………….. 74 Chapter 6. Adhering to court orders ……………………………………….………. 76 Orders that were followed ……………………………………………………………….… 77 Orders that were flouted ……………………………………………………………….….. 78 Discussion …………………………………………………………………….…………….. 83 Chapter 7. Do courts work for parents? ……………………………………..……. 85 Whose principles should prevail?…………………………………………………….…… 85 The principles are fine; the legal process is wrong ………………………….……….... 86 Is it best to avoid the courts? …………………………………………………………….. 87 References ……………………………………………………………………………….… 93 Appendices A: Cover letter from the court ………………………………………..…… 99 B: Cover letter to parents – questionnaire only (Mothers and Fathers) 101 C: Cover letter – with invitation to take part in an interview (Mothers and Fathers) ………………………………..……………….. 103 D: Questionnaire ………………………………………………..…………. 107 E: Interview schedule ……………………………………………………. 113 List of Tables Table 1.1 The returned questionnaires from each court area, frequency and per cent…………………………………………………………... 4 Table 1.2 The questionnaire respondents according to parental status and gender, per cent……………………………………………………… 5 Table 1.3 The number of parents interviewed in each court area…………. 6 Table 1.4 The interviewees by parental status and gender, n=61 .………… 6 List of Figures Figure 6.1 The following of orders………………………………………………. 77 Executive Summary This Report is the second volume to be published from the study on Residence and Contact Disputes in Court funded by the Department for Constitutional Affairs and carried out at the University of Leeds. The first volume1 was based on a survey of 430 court cases in three different County Courts in England2 and focused on disputes between parents over residence and contact filed in 2000. This second volume is based on the outcomes of qualitative, in-depth interviews with 61 parents who had taken their dispute to court in one of our three areas. We interviewed 34 mothers and 27 fathers, with equal numbers of residential parents and contact parents (although the fathers were mainly the contact parents). The data are skewed towards the high- conflict end of court cases, and are therefore not necessarily representative of what goes on in the majority of cases that go to court. Aims The main aims were to establish why parents go to court, what their expectations were, whether these were met, whether they were satisfied with the outcomes (and if not why not), how the arrangements for children were working, and what the effect of going to court was on them and their children. What takes parents to court? The apparent answer to this is that parents had disputes over who could care best for their children, or over who was harming the best interests of their children by their behaviour. But we found that issues of child welfare – although real – were not necessarily the driving force behind the conflict. Parents were often angry about having been mistreated, deceived, or abandoned. Alternatively they were angry about the way in which their former partner behaved following the separation; so issues of failing to pay child support or starting to live with a new partner could ignite or fuel the dispute. We found that because the courts would not listen to these complaints, that parents channelled their hostility into the one issue they could take before a judge, namely disputes over the children’s residence and the time they spent with the other parent. We are not suggesting that parents’ concerns for their children were fabricated or that they were used cynically, rather we suggest that parents are i now channelled into what we call a parenting contest in which it becomes paramount to ‘prove’ that the other parent is inadequate or unworthy. We found that the parenting contest was played for very high stakes with people’s sense of self as a good or decent mother or father being threatened and even damaged. What do parents complain about in relation to their court case? The decision of the court: Not surprisingly where a parent felt that the decision had gone against them (or against their ideals of justice or child welfare) they blamed the judge
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