INTRODUCTION
On 30 July 2004 Kingsley Miller was given the unique privilege by the Court of Appeal in the UK to publish the County Court judgments from the family proceedings in his case because of his, "history of responsible campaigning and writing on issues relating to family relationships" - You can read these judgments here by using the links along the side of the page or reading further.
According to the Department for Education and Skills key facts about children's best interests - (Parenting Plans - Putting Your Children First - A guide for separating parents - pp.4) - 'children are entitled to a relationship with both their parents, whether or not they live together'. The benefits of a relationship with both parents can be most effectively achieved by shared custody. For separated fathers, this means they can be more involved with their children, seeing them on a regular, extended basis every week. It also means that neither parent is carrying the entire burden of parenting while the other is considered absent.
However according to Maureen Freely writing in the, Guardian, these benefits can be undermined by the attitude of some judges and she goes on to say,
In the transcript from the first County Court judgment you can see His Honour Judge Milligan state that, 'experience shows that very small children relate very heavily both physically and emotionally to their mother' and that 'much harm is done where a man believes that he is acting for the best all round but he in fact is promoting his own view of the case'. The father's view is, of course, that very small children relate very heavily both physically and emotionally to each parent and that he should be allowed to share equally in the upbringing of his own son but as a result of expressing this opinion he was allowed only meager contact.
In the second County Court judgment His Honour Judge Milligan continues to disagree with the father and says that he found that he 'suffered from a mental block, that he had a view regarding contact with which I did not agree, that he was failing to see it from the child's point of view'. Instead His Honour Judge Milligan says 'the child needed stability, that the mother had lost sleep and was worried about the case, the constant applications had been unsettling for her and were having an adverse effect on the child, who was having trouble sleeping and was missing his morning sleep during contact visits'.
In the third County Court Judgment the father unsuccessfully attempts to 'recuse' or remove the judge because of his views.
In the fourth County Court judgment the father makes an official application for shared parenting which is rejected by the judge on the basis that it was the father's views that are nonsense. His Honour Judge Milligan even went as far as removing the father's 'Parental Responsibility Order' which is the child's only official recognition of his father, to show his disapproval.
The fifth and sixth County Court Judgments took place in criminal proceedings against the father because he produced a booklet called 'even Toddlers Need Fathers' which compared the court authorities used to justify the 'tender years doctrine' to the flawed theory of 'maternal deprivation' popularised by Dr John Bowlby.
In the seventh and last County Court Judgment His Honour Judge Milligan allows the mother's move to New Zealand without the agreement of the father.
In the second part you can see how the Court of Appeal treated these applications. For example in the first two judgments the Court of Appeal supports His Honour Judge Milligan. In the first judgment Lord Justice Thorpe treats the contact arrangements as the 'forensic norm' although Lord Justice Ward in the second judgment states, "I see the force of the argument that to wait until the boy is four before going back to the court is harsh but the judgment is beyond appeal.”
In the third judgment Lady Justice Hale, now Baroness Richmond the first female Law Lord, describes Dr Bowlby's theory of 'maternal deprivation' upon which the 'tender years doctrine' is based like this,
The fifth Court of Appeal judgment describes how Lady Justice Hale treated the application for a Shared Parenting Order and the removal of the Parental Responsibility Order and the sixth how her Ladyship treated his attempt to have a Court Ordered Report on the impact of contact orders on children. In the seventh Court of Appeal judgment Lady Justice Hale states,
Subsequently this judgment has suffered collateral attacks by different judges in separate courts. But the integrity of a court order can only be challenged by appeal to a higher court and so far these attacks have proved unsuccessful. It is hoped that the publication of these judgments will hasten the trend towards parity of esteem between both parents in the eyes of their children and UK family law will see the introduction of a rebuttable presumption of shared parenting.
On 30 July 2004 Kingsley Miller was given the unique privilege by the Court of Appeal in the UK to publish the County Court judgments from the family proceedings in his case because of his, "history of responsible campaigning and writing on issues relating to family relationships" - You can read these judgments here by using the links along the side of the page or reading further.
According to the Department for Education and Skills key facts about children's best interests - (Parenting Plans - Putting Your Children First - A guide for separating parents - pp.4) - 'children are entitled to a relationship with both their parents, whether or not they live together'. The benefits of a relationship with both parents can be most effectively achieved by shared custody. For separated fathers, this means they can be more involved with their children, seeing them on a regular, extended basis every week. It also means that neither parent is carrying the entire burden of parenting while the other is considered absent.
However according to Maureen Freely writing in the, Guardian, these benefits can be undermined by the attitude of some judges and she goes on to say,
"Shared parenting as practised today is a flexible concept. It can mean that all care is shared 50-50, or that children spend 80% of the time in one house and 20% in the other. Most families do the fine print by themselves. Its only when they can't agree they end up in court. When they do, their case will be considered according to its own merits. But certain rules of thumb remain. When making their decisions, many British judges still shy away from the ideal of shared parenting as described in the Children Act and are guided by the 'tender years doctrine'. Dr Hamish Cameron, a consultant child psychiatrist who has served as an expert witness in many cases, describes this as the belief that young children are best off with the parent with the closest resemblance to the Madonna. Where judges sees their first duty as preserving the mother-child dyad, their solution in some intractable cases will be to remove the father from the picture."('Children first', 27th March 2002)It is against this background that the author was given the, so far unique privilege, by Lord Justice Thorpe and Lord Justice Clarke in the Court of Appeal, to publish the County Court judgments from his family proceedings. From these judgments it is possible to look inside the, so called, 'secretive' UK family courts to see how the 'tender years doctrine' is applied to deflect fathers from sharing in the upbringing of their child or children.
In the transcript from the first County Court judgment you can see His Honour Judge Milligan state that, 'experience shows that very small children relate very heavily both physically and emotionally to their mother' and that 'much harm is done where a man believes that he is acting for the best all round but he in fact is promoting his own view of the case'. The father's view is, of course, that very small children relate very heavily both physically and emotionally to each parent and that he should be allowed to share equally in the upbringing of his own son but as a result of expressing this opinion he was allowed only meager contact.
In the second County Court judgment His Honour Judge Milligan continues to disagree with the father and says that he found that he 'suffered from a mental block, that he had a view regarding contact with which I did not agree, that he was failing to see it from the child's point of view'. Instead His Honour Judge Milligan says 'the child needed stability, that the mother had lost sleep and was worried about the case, the constant applications had been unsettling for her and were having an adverse effect on the child, who was having trouble sleeping and was missing his morning sleep during contact visits'.
In the third County Court Judgment the father unsuccessfully attempts to 'recuse' or remove the judge because of his views.
In the fourth County Court judgment the father makes an official application for shared parenting which is rejected by the judge on the basis that it was the father's views that are nonsense. His Honour Judge Milligan even went as far as removing the father's 'Parental Responsibility Order' which is the child's only official recognition of his father, to show his disapproval.
The fifth and sixth County Court Judgments took place in criminal proceedings against the father because he produced a booklet called 'even Toddlers Need Fathers' which compared the court authorities used to justify the 'tender years doctrine' to the flawed theory of 'maternal deprivation' popularised by Dr John Bowlby.
In the seventh and last County Court Judgment His Honour Judge Milligan allows the mother's move to New Zealand without the agreement of the father.
In the second part you can see how the Court of Appeal treated these applications. For example in the first two judgments the Court of Appeal supports His Honour Judge Milligan. In the first judgment Lord Justice Thorpe treats the contact arrangements as the 'forensic norm' although Lord Justice Ward in the second judgment states, "I see the force of the argument that to wait until the boy is four before going back to the court is harsh but the judgment is beyond appeal.”
In the third judgment Lady Justice Hale, now Baroness Richmond the first female Law Lord, describes Dr Bowlby's theory of 'maternal deprivation' upon which the 'tender years doctrine' is based like this,
'That theory was that children were damaged by separation from their mother or mother figure. Sir Michael Rutter pointed out that children were not invariably so damaged and that, in any event, other people, including their fathers, are also very important to children'.In the fourth Court of Appeal judgment Lord Justice Thorpe dismisses the father's attempt to have His Honour Judge Milligan removed from the case.
The fifth Court of Appeal judgment describes how Lady Justice Hale treated the application for a Shared Parenting Order and the removal of the Parental Responsibility Order and the sixth how her Ladyship treated his attempt to have a Court Ordered Report on the impact of contact orders on children. In the seventh Court of Appeal judgment Lady Justice Hale states,
'He argues that one of the purposes of the Children Act 1989 was to redress the balance: to promote a more equal sharing of responsibility for children between mothers and fathers and to promote the maintenance a good relationship as possible between children and each of their parents should, unhappily, their parents not be living together. The father is correct that that was one of the principles behind the Children Act 1989, in which I take a certain amount of pride. The father points out that he has a certain amount of pride, so I make that comment in response'.In the eighth Court of Appeal Judgment Lady Justice Hale suggests that the Injunction Order made against the father publishing his book could be 'varied' and the last two judgments involve Lord Justice Thorpe's decision to give the father the unique privilege of publishing the County Court judgments from his family proceedings because of his, 'history of responsible campaigning and writing on issues relating to family relationships'.
Subsequently this judgment has suffered collateral attacks by different judges in separate courts. But the integrity of a court order can only be challenged by appeal to a higher court and so far these attacks have proved unsuccessful. It is hoped that the publication of these judgments will hasten the trend towards parity of esteem between both parents in the eyes of their children and UK family law will see the introduction of a rebuttable presumption of shared parenting.
