If the UK family courts apply the tenders years theory & the European Court of Human Rights took the view that the German government had gone too far and found in favour of the father because the 'Tender Years Theory' effectively prevents children from having a family life with their fathers, can't UK fathers use this decision to make a claim to the European Court of Human Rights?Many thanks Dave. DAVIES, Philip
Subject: RE: Men are more likely to be sent to prison than women.
Thank you for your email.
I am afraid that I am not a lawyer and not qualified to give you any legal advice.
Best wishes Philip Davies MP Sent: 28 January 2013 08:24
To: DAVIES, Philip
Subject: Men are more likely to be sent to prison than women.
Philip Davies MP. House of Commons. London http://www.philip-davies.org.uk/ 28th Jamuary 2013.
Dear Mr. Philip Davies MP,
Please can you tell me if you think the information below can & should be used to take my case to the ECHR on the grounds that I have been discriminated against in the UK family courts because I am a father?
Yours Sincerely, David Mortimer
The Tender Years Theory' is the root of the problem because it discriminates against fathers.
http://www.humanrights.is/the-human-rights-project/humanrightscasesandmaterials/cases/regionalcases/europeancourtofhumanrights/nr/643
The European Court of Human Rights took the view that the German government had gone too far and found in favour of the father. 'Tender Years Theory' effectively prevents children from having a family life with their fathers.
According to Merrills in 'The Development of International Law by the European Court of Human Rights', (Manchester University Press, 1993), the European Court of Human Rights has adopted a cautious line when interfering in domestic jurisdiction. It has established a number of basic guidelines closely related to Article 31(3)(b) of the Vienna Convention which takes into account the, 'subsequent practice of the state in the application of the treaty'.
In layman's terms although something may be wrong, if the practice is long established, it can be ruled inadmissible by the European Court of Human Rights. For example, by limiting contact, the 'Tender Years Theory', effectively prevents children from having a family life with their fathers. Therefore it may be argued that the principle of 'maternal deprivation' contravenes,
Article 17
Nothing in this convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.
It may also be argued that because this theory is so prevalent in family proceedings that the courts are not functioning in an objective way and contravene,
Article 6
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
However these infringements maybe overlooked because,
'It is essentially for the domestic courts to determine what is in the best interests of the child, having regard to the parents submissions and other relevant evidence' and 'access to the court has been made subject to a restriction, namely the leave of the court, which may be considered proportionate in the circumstances and compatible with the pursuit of a legitimate aim: the best interests of the child. As stated previously, it is not for the Strasbourg Court to impugn the merits of that aim.'
This approach is a thorny issue yet recent applications to the European Court of Human Rights have proved a limited success. For example in the case of Elsholz vs. Germany (Application Number 25735/94) the European Court not only reaffirmed the father's right to a family life with his child but upheld the principle that his contact should not be disrupted by Parent Alienation Syndrome.
In the case of Sahin vs. Germany (Application Number 30943/96), the European Court of Human Rights took the unusual step of overriding the view of the domestic court which was that, the mother could block contact with the father because she believed this was in the best interests of the child. The European Court of Human Rights took the view that the German government had gone too far and found in favour of the father.
http://openfamilycourtsuk.blogspot.co.uk/2010/10/disputes-in-one-of-fact-which-involves_23.html?m=1
The Tender Years Doctrine as applied through Case Laws in UK Family Proceedings.
"This is so well written that it could almost be an academic article". Lady Justice Hale, now Baroness Hale of Richmond the first female Law Lord and a member of the UK Supreme Court, in the Court of Appeal, on 8th June 2000
'Disputes in One of Fact which Involves Legal Authorities'
"He appends to his skeleton argument a document entitled 'Disputes in One of Fact which Involves Legal Authorities'. This is so well written that it could almost be an academic article. In this the father argues that the courts themselves have adopted some sort of maternal preference, and in doing so they have failed to have a proper regard to the more recent psychological literature and that, in any event, they are wrong; gender is not an appropriate guide as to who is the most suitable parent or as to how a child should be parented". Lady Justice Hale, now Baroness Hale of Richmond, on 8th June 2000.
His Honour's remarks concerning the 'Dependency Theory' which His Honour said was 'generally accepted' and the Appellant's background in teaching has caused confusion and distrust which now forms the substantive issue in this appeal.
His Honour's remarks may be attributed to the examples of case law which form precedents in the Family Division. It is on this body of knowledge His Honour has relied to form His opinions and make His orders. This body of knowledge is based on a false premise. It is the present 'interpretation of the law' used as the criteria for making section 8 orders which the Appellant is also seeking to appeal against.
Dewar (1992 Law and Family p 369) describes the current situation in the following way,
A child's emotional needs are perhaps the least determinate factor of all. Bowlby's theory of 'Maternal Deprivation', which stressed 'the absolute need of infants and toddlers for the continuous care of their mothers' (Bowlby 1965, p 18), has exercised a considerable influence over the minds of judges; 1 although Maidment suggests that, 'current judicial thinking displays a tension between the earlier maternal preference and a less priori, more open-minded approach to whatever is in the best interests of the child.' (1984, p 177).
Recent decisions of the Court of Appeal have continued to display this tension. For example, it has been said that although there is no presumption that young children should be with their mothers, it is nevertheless the case that it is, 'natural for young children to be with their mothers but, where it is in dispute, it is a consideration but not a presumption'.2 Other considerations, such as the continuity of the mother-child relationship, are equally important.3
However, it has also been said that it 'is not a principle but a matter of observation of human nature in the case of upbringing of children of tender years, that given the normal commitment of a father to support the family, the mother, for practical and emotional reasons, is usually the right person to bring up the children'.4 This has been reinforced by a reluctance by the Court of Appeal to permit fathers either to share care of children with other members of their own family, or to give employment in order to care for the children themselves.5 Such statements are, however, also explicable, not as an expression of a maternal preference, but as a general affirmation of the current sexual division of labour' (Brophy 1985, p100) in which women are primarily responsible for child care during marriage and after. This is reflected in the fact that in uncontested cases, as we have seen, the vast majority of couples decide to leave the children with the mother.
In particular it is the 'tension' displayed by judges in the Court of Appeal which is also the focus of this Appellant's distrust and concern.
Barton and Douglas (1995, Law and Parenthood, p131 ) refer to the former Master of the Rolls Lord Donaldson's general point regarding gender in 1992,
At the risk of being told by academics hereafter that my views are contrary to well-established authority, I think that there is a rebuttable presumption of fact that the best interests of a baby are best served by being with its mother, and I stress the word 'baby'. When we are moving on to whatever age it may be appropriate to describe the baby as having become a child, different considerations may well apply.6
These opinions are summarised by the account of the criteria used in making section 8 orders given in Butterworths Family Law Guide 1997 which states under the heading, 'The age of the child.' (p 269)
8.8 There is no presumption of law that a child of any given age is better off with one parent or the other. The only legal principle involved is that the welfare of the child is paramount. However, no court will be ignorant of what would be the natural position if all other things were equal. A very young baby will normally be with his/her mother. It has therefore been held that there is a rebuttable presumption of fact (not law) that the best interests of the baby are served by being with its mother (although different considerations may well apply when moving on to whatever age it might be appropriate to describe the baby as having become a child) 7
It can be seen from this description that over the years the cumulative effect of a series of precedents has given the Family Division a criteria for making section 8 orders which closely ressembles Bowlby's theory of 'Maternal Deprivation'. This explains how this theory which stresses 'the absolute need of infants and toddlers for the continuous care of their mothers' continues to 'exercise a considerable influence over the minds of judges.' Both the Bowlby theory and the Family Division's 'rebuttable presumption of fact' are based on this premise.
His Honour described this 'interpretation of the law' as the 'Dependency Theory' which is 'generally accepted'. According to this 'consideration' in the Appellant's case his son should not be separated from his mother for more than 2 hours until he is at least 4 years old and that 'any' application made during this period must be considered vexatious or frivolous. It is the Appellant's argument that this premise is wrong and it follows that the authorities and therefore the orders which rely on this premise must also be wrong.
The Appellant uses as his well-established authority the work of Rutter. Rutter was made an Honorary Fellow of the British Psychological Society and the American Academy of Child Psychiatry. In 1987 he was elected a Fellow of the Royal Society and was knighted in 1992. His pre-eminent work on child psychology 'Maternal Deprivation:Reassessed' states,
i. Investigations have demonstrated the importance of a child's relationship with people other than his mother.
ii. Most important of all there has been repeated findings that many children are not damaged by deprivation.
iii. The old issue of critical periods of development and the crucial importance of early years has been reopened and re examined. The evidence is unequivocal that experiences at all ages have an impact.
iv. The first few years do have a special importance for bond formation and social development.
The Appellant states that according to Rutter (1) there is no reason the father should not have comparable contact time even from an early age. (2) There is no such thing as a period during early life when events, such as applications made to court, have a special impact. (3) Although mothers may claim that children are damaged in some way by contact with the father this also is not true. (4) Investigations have demonstrated the importance of a child's relationship with people other than the mother.
The Appellant seeks to challenge the following authorities in the Court of Appeal;-
Lord Donaldson's general point regarding gender in 1992,
At the risk of being told by academics hereafter that my views are contrary to well-established authority, I think that there is a rebuttable presumption of fact that the best interests of a baby are best served by being with its mother, and I stress the word 'baby'. When we are moving on to whatever age it may be appropriate to describe the baby as having become a child, different considerations may well apply.6
There is no such 'rebuttable presumption of fact.' It is not possible to use the sex of the parent as a guide to who is best suited to looking after babies. As well as the work of Rutter the Appellant also uses the pronouncements of the present Home Secretary who advised single parent mothers to give up their babies for adoption. The Home Secretary is responsible for The Family Court Welfare Service which advises judges in the family section. The Home Secretary could not make such statements if there was a 'rebuttable presumption of fact' that the natural mother is the best peron to bring up babies and small children. Rutter states,
i. Investigations have demonstrated the importance of a child's relationship with people other than his mother.
There is no reason the father should not receive comparable contact even at an early stage. This 'rebuttable presumption of fact' is unreasonable and represents a significant prejudice in the Family Division. The idea that 2 two hour sessions is 'generous' contact for father and son is untenable. The former Master of the Rolls is wrong in fact and law.
The Appellant seeks to challenge the authority of Sir Roualeyn Cumming-Bruce (1992) when he stated,
'It has also been said that it is not a principle but a matter of observation of human nature in the case of upbringing of children of tender years, that given the normal commitment of a father to support the family, the mother, for practical and emotional reasons, is usually the right person to bring up the children.'4
He was making a fundamental error in judgment based on superficial observation not empirical fact. According to Rutter,
iii. The old issue of critical periods of development and the crucial importance of early years has been reopened and re examined. The evidence is unequivocal that experiences at all ages have an impact.
There is no reason disputes in the family court section cannot be settled in the first few years of a child's life. The Children Act states any postponement will prejudice the welfare of the child. 'The Tender Years Theory' avoids issues or stigmatises applicants, such as the Appellant, as vexatious or frivolous for no valid reason. It is unreasonable and represents a significant prejudice. It is wrong in fact and in law.
This principle is acknowledged in Employment law. The Employment Relations Act 1999 states that 'Unmarried father who have acquired Parental Responsibility by means of formal agreement with the mother or by means of a court order' should be allowed the same rights as the mother to 'Parental Leave' of thirteen weeks for each child under the age of five, "for the purpose of caring for the child". This interpretation in Employment law has highlighted the inconsistency of Family law. If Parliament felt that there was a 'rebuttal presumption in fact' that a child under five could not be cared for by the father it would would say so. This Employment law does not make a difference between parents on the basis of their sex so why treat parents differently in Family law?
The Appellant also seeks to challenge the authority of Lord sic Justice Butler-Sloss (1991) that although there is no presumption that young children should be with their mothers, it is nevertheless the case that it is,
'natural for young children to be with their mothers but, where it is in dispute, it is a consideration but not a presumption'.2
It does not follow 'in fact' or 'in law' that the sex of a parent is an accurate guide to who is best suited to caring for even small children. According to Rutter's research the defining quality of either adult is the love and affection they share for their offspring.
i. Investigations have demonstrated the importance of a child's relationship with people other than his mother.
The law is clear that both parents should be encouraged to bring up their children. According to the present 'interpretation of the law' a 'consideration' in the Appellant's case means that his son should not be separated from his mother for more than 2 hours until he is at least 4 years old and that 'any' application made during this period must be considered 'vexatious' or 'frivolous'. This is unreasonable and represents a significant prejudice. Lord sic Justice Butler-Sloss is wrong in fact and in law.
Rutter's research is recognised by the European Convention on Human Rights, Protocol 7 Article 5, which states,
Article 5
Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in relations with their children, as to marriage, during marriage and in the event of its dissolution. This Article shall not prevent states from taking such measures as are necessary in the interests of children.
This Article does not represent an unattainable Utopia. It is not something a few politicians dreamt up. It is a simple yet clear affirmation of the important contribution both parents can make to the upbringing of their children. The question that must be posed is why has the United Kingdom not ratified this Article? It is because spouses do not enjoy equality of rights and responsibilities because the Family Division still believes in Bowlby's theory of 'Maternal Deprivation', which stresses 'the absolute need of infants and toddlers for the continuous care of their mothers'.
Does this mean the welfare of children suffers in Europe because they are allowed to have a proper relationship with their fathers? Of course it does not. It only seeks to highlight the difference in attitude to the family on the Continent and in this country. The tension and confusion created in the Family Division in the UK is caused by the attitude of successive judges to reaffirm Bowlby's theory based on superficial observation rather than empirical fact.
A problem with Bowlby's work is that it helps judges to feel good about their decisions by pretending they are made for the welfare of the child which allows judges to simply dismiss applications in a routine way by saying that the 'Dependency Theory' is 'generally accepted'. It is easier to go this way than to change. Here lies the greatest danger.
According to Rutter the first few years do have a special significance but it is for 'bond formation and social development'. By seeking to exclude or limit contact with the father to a meaningless level whether wittingly or unwittingly this 'interpretation of the law' is really damaging the welfare of children who appear in the family court section by ignoring the contribution of both parents to the psychological and sociological well being of the child especially in early life.
Rutter called his book 'Maternal Deprivation;Reassessed' not because he is a plagiarist. He gave it this name so he could make as bold a statement as possible about the work of Bowlby. The greater encompasses the lesser and for his work with children Rutter was knighted in 1992. The overall effect of these precedents is to reaffirm the work of Bowlby. It should be Rutter's research which informs the law, not the 'Dependency Theory', as it does in Europe.
It is also not sufficient to argue each individual case on its merits. This would act against the principle of natural justice in Family law. It is important to look at the cumulative effect of these precedents taken together as summarised in Butterworths Family Law Guide 1997. This 'interpretation of the law' represents a 'Glass Ceiling' to the hopes and aspirations of fathers who appear in the family court section.
According to Section 1, Article 6, of the European Convention on Human Rights,
Article 6
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
The Court of Appeal is a court of appeal. It seeks to overturn decisions in single cases which are 'plainly wrong.' The general effect of this process is that no single judge is able to see the overall picture. It is assumed that judges in family courts act in 'the best interests of the child'. Judges are authorities in law not child psychology. They rely on the experience and expertise of judges in higher courts to form their own opinions to make decisions which 'may be considered proportionate in the circumstances and compatible with the pursuit of this aim'. If as a result of the judicial process or a lack of expertise these precedents or this body of knowledge can be shown to be faulty it must follow that the decisions made in the lower courts must also be faulty or unfair.
The Court of Appeal should not be seen to endorse or promote in word or deed a theory which is plainly wrong. It is for this reason the Appellant is seeking recognition in the Court of Appeal for the work of Rutter and a change to the 'interpretation to the law' so that it is stated,
'There is no longer a rebuttable presumption of fact in Family law that the best interests of the baby are served by being with its mother. That the gender of the parent should not be used as a consideration in the criteria for making section 8 orders. 'The Tender Years Theory' ( or similar ) should not apply to any decision made in the Family Division'.
The Appellant has shown how the judge in this case has based his opinions on these precedents and why this body of knowledge is based on a false premise which is damaging the welfare of the child.
(The Appellant states that not a single child in the family court section will suffer as a result of the Court of Appeal setting this precedent and recognising Rutter's work.)
Notwithstanding the section 91 (14) order imposed in this case the Appellant should be very grateful if the Court of Appeal would hear this application.
References
1. See, eg, Re W (a minor) (1982) 4 FLR 492. For empirical evidence, which does not strong support for the existence of a 'maternal preference', see Eekelaar and Clive 1977, Ch 6 and Maidment 1984, Ch 3; but see Priest and Whybrow 1986, paras 4.20-4.27.
2. Per Lord sic Justice Butler-Sloss in Re S (1991) 2 FLR 388, CA.
3. See, eg, Re A (a minor) (1991) 2 FLR 388, CA.
4. Per Sir Roualeyn Cumming-Bruce in Re H (a minor) (1990) 1 FLR 51, CA.
5. Per Lord Justice Ormand in Plant v Plant (1982) 4 FLR 305 at 310; Dicocco v Milne (1983) 4 FLR 247.
6. Lord Donaldson MR (1992) 2 FLR 332, 336.
7. See Re W (Residence Order: Baby) (1992) 2 FCR 332, (1992) 2 FCR 603. See also, eg Re A (1991) 2 FLR 394, (1991) FCR 569 and RE S (1991) 2 FLR 388., (1991) FCR 155
http://www.familieslink.co.uk/pages/research_maternaldeprivation.htm
Fifty years of ‘Maternal Deprivation’ reassessed. by Kingsley Miller
http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2206&context=californialawreview
The Tender Years Doctrine: A Defense
Ramsay Laing Klaf
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