The Government is sending out mixed messages about the rights of fathers after divorce. David Cameron, Nick Clegg and Iain Duncan Smith all believe that dads should be given greater access to their children. Children's Minister Tim Loughton, who has long favoured a presumption of shared parenting, is to lead a ministerial group to work out how to change the law to make this happen. But Justice Secretary Ken Clarke thinks the status quo is about right, and that the family courts are not in fact skewed against fathers.
So who is likely to win the battle for custody of this policy? Last March, when the Norgrove Review (of the family justice system) put out its first, interim, report, a strong hint was given that it would recommend a presumption of shared parenting. But its final report, in November, knocked that idea firmly on the head. Equal access for both parents was rejected on the grounds that it might not be in a child's best interests. A more important reason for coming to that conclusion was the fear that reaching a shared parenting arrangement might prolong court proceedings and increase costs.
Since the dominant theme of Norgrove is to reduce both delays and costs in the family courts, this fear was reason enough to abandon the equal access presumption. As far as Ken Clarke was concerned, that was the right conclusion. He is determined to reduce public expenditure on the legal system and the escalation in costs of family proceedings in recent years has made this area a prime target for cuts.
But the one (and possibly only) family policy David Cameron and Nick Clegg can agree on is the importance of fathers in children's lives. Hence the coalition's decision to take the matter back into government and hold its own review of whether, and how, the law might be changed. As usual, Ken Clarke is unwilling to trim his views in order to stay on message, and over the last couple of days has made it pretty clear that he doesn't expect the law to shift significantly in favour of shared parenting; merely to articulate the “principle” that both parents have continuing responsibilities after divorce. The last thing he wants is for the cost-saving elements of the Review to be jeopardised at the behest of the fathers' lobby. If Mr Clarke gets his way, Charlie Elphicke's hopes for a change in the law will be dashed.
I think it likely that the Justice Secretary will win this particular battle and that the Government will in the end bring forward only modest proposals, most likely in the form of new guidelines emphasising the need for “meaningful” contact with non-resident parents. The best possible spin will be put on this outcome, to reassure the public that the Government is in favour of responsible fatherhood. In practice, family court judges will continue to walk the present tightrope between providing a settled home for the children of a messy break up and ensuring that willing fathers are not being denied access to their children on spurious grounds.
How much does any of this matter? Whilst I fully share Charlie's view that every child deserves to have a relationship with both parents, and that far too many children are growing up without fathers, I have never been very optimistic that a change in access law will have much impact on the problem. The reasons why children lack fathers starts so much further back than the divorce courts, and unless the government shows itself willing to tackle the roots of the problem, tweaking access presumptions will be little more than a sideshow. The most significant cause of fatherlessness is the very high rate of births outside marriage, currently 46%. An estimated 15% of babies start life in a home without the father present at all. As for parents who are cohabiting, they tend to break up while their children are young; amongst the parents of 16 year olds, only 3% of intact couples are cohabitees.
This means that cohabitation breakdown is the main source of parental separation. It is the rise of relationships outside marriage that most undermines the link between father and child. Divorce has levelled off in recent years – that's mainly because marriage rates have fallen away, leaving fewer candidates. But the children of divorced couples are much more likely to remain in contact with their fathers than if their parents had never married in the first place – so that marriage goes on having a protective effect even after it is dissolved. Children of divorce are also much more likely to be receiving financial support from the absent parents, and there is a strong link between regular maintenance payments and regular contact.
If the Government wants children to enjoy the benefits of a relationship with both parents, it needs to come down very firmly on the side of marriage, exhorting couples to commit to each other before becoming parents and ensuring that its fiscal and welfare policies are consistent with this objective. As far as family law is concerned, proposals for compulsory mediation (as a pre-condition of access to court) are welcome insofar as they force parents to think harder about the needs of their children. But mediation – and other forms of counselling – need to be configured on the assumption that couples should be encouraged to repair their relationship, rather than merely negotiate a break-up.
Ministers seem to find it easier to blame the courts for father absence than to speak up for marriage. But the children in court are just the tip of an iceberg of family breakdown which the government must find the courage to talk about, sooner rather than later.