The Sunday Times

November 6th, 2011

The divorce plan dangling more reward before malicious mothers

y mother-in-law was a monster.

MShe had many sterling qualities, but even her admirers agreed she was awful. When long ago my new daughter had just grown a few adorable curls, Grandma marched her without warning off to a smart stylist in Sloane Street and had them all sheared off. My baby girl looked like a skinhead baby boy for months, but Grandma constantly assured me, in defiance of all the facts, that this would make her granddaughter’s hair grow thicker. After that I tried to stop Grandma going out with my daughter unsupervised.

This caution proved necessary. Watching her baby granddaughter rolling around naked in the sun some time later, Grandma opined in her carrying tones that the child should be circumcised, the sooner the better, because it stopped girls getting into trouble. I don’t think she had the slightest idea what female circumcision was, or who practised it, but she clearly felt inclined to interfere in some way, and this was simply her latest bright idea. She would have been quite capable of bamboozling some greedy doctor into mutilating her granddaughter.

As the years wore on, my mother-in-law warned me repeatedly that even if I divorced her son, I needn’t think I would be able to keep her away from her granddaughter — all this in a breezy conversational tone, on the most amicable of occasions. She had grandparental rights, she assured me. Fortunately she was wrong.

I was reminded of nightmare granny possibilities by a tabloid shock story last week announcing the publication of a new independent review of family justice, commissioned by the Labour government. “Grandparents are ‘damaging children as they interfere during divorces’ “, ran the headline. According to the report’s author, David Norgrove: “Grandparents can be used by parents as a way of getting at their ex-partner. Grandparents are not always straightforward in the way they behave and the result can be damage to children. Not all grandparents are good grandparents.”

That is the truth, however unpleasant.

The same goes for parents. The highly controversial Norgrove review contains quite a few unpleasant truths, so two hurrahs for that. All too many considerations of family justice — what happens when families break up — are confused by attempts to avoid unpleasant truths. Justice cannot be based on wishful thinking.

One particularly painful truth is that it may not be best for all fathers (or mothers) to go on seeing their children after an ugly divorce, even when not themselves particularly at fault. Vengeful disputes over custody and drawn-out court battles are extremely distressing for children. Some parents are mad or bad or emotional menaces. It is also clear that there are some parents — another painful truth is that such parents are usually mothers — who will use access to their children as a weapon, driving their former husbands between hope and disappointment, and deliberately turning their children against them.

Such things happen often, and it is difficult, time-consuming and expensive to keep going to court to insist on the access to the children that has already been granted. To treat reasonable husbands like this, while their wives have behaved disgracefully, is a horrifying affront to justice.

The painful truth is that, just as in the judgment of Solomon, the answer is not to cut the child in two with the unfeeling sword of justice. Justice — access and custody rights — for the unhappy father might not be good for his unhappy child: it might indeed tear the boy apart. The truest father (or mother) might, like the true mother before Solomon, do well to sacrifice his or her own happiness for his child’s.

Court battles to establish parents’ rights, and domestic battles to exercise those rights, are often at odds with what one might call children’s rights. A child’s need for security and for emotional freedom from painfully conflicted loyalties may sometimes be as great as his need for two parents — or even greater. I’ve often thought that it is much easier to be the child of a dead father, as I was, than the child of a divorced father.

All this is why Norgrove proposes to deny divorced fathers the automatic legal right to see their children, which they now have. He wants to end the legal presumption of shared parenting. He has also explicitly avoided giving any new legal rights of access to grandparents, despite Conservative promises made by David Willetts in 2009. Grandma would have been outraged. “The law cannot state a presumption of any kind,” Norgrove says, “without incurring unacceptable risk of damage to children.”

This is a position, however rational, that you might imagine would cause national outrage. In fact the response so far has been surprisingly mild. Perhaps that is because one has only to say, with Norgrove, that children’s wellbeing must come first to silence most argument. Norgrove explains his view by pointing to findings from other jurisdictions, such as Australia, which suggest that children are more damaged when courts impose specific access to both parents. “All the evidence,” he said, “is that it pushes judges into ordering more time with both parents than is good for the child.”

The tragic outcome of Norgrove’s view, reasonable though it seems to me, is that it will reward malicious mothers, more than they’re rewarded already. The absurdity is that his review was originally commissioned to deal with the existing bias in practice against fathers. That will now be worse.

It may be that none of Norgrove’s suggestions becomes law. The only cabinet member who likes them seems to be Ken Clarke, which is probably the kiss of death. But if the assumption of a divorced father’s right of access to the children is to be dropped, so too, in justice and reason, should be the mother’s. I should have thought it was illegal to discriminate against men in this way. It may be the case that the father would make a better lone parent or would be better equipped to look after a child. Why should the presumption remain with the mother? If neither parent has automatic rights of custody, each should make plans before any divorce. Where they cannot agree, they should be obliged by law to settle the matter, quickly, through professional arbitration, with powerful disincentives against dragging their families through the courts. This should apply to grandparents, too.

However, that wouldn’t have deterred my children’s grandma. The law cannot be proof against every monster in the family bestiary.