The Case for Group Litigation/Class Action against No Contact Orders


The harm caused by a lack of shared-parenting following divorce or separation

Office of National Statistics (ONS) report ‘Overview of the UK Population: November 2018’, [page 9, Sarah Coates, ONS, 1st November, 2018] estimates the 2018, UK population of children under 16-years at 12.4 million. A withdrawn report from the Department of Works and Pensions ‘Estimates of the Separated Family Population Experimental Statistics,’ [October, 2016] estimated the UK population of separated families in 2013-14 at 3.7 Million children [page 5] in 2.6 Million families [page1]. So, according to Government statistics from the ONS and the Dept. of Works & Pensions, a little under 1 in 3 children (29%) of the entire population of children in the UK were living in separated families in the year April, 2013-14. 

Research into the effects on children who have parents that are separated or divorced is conflicting and often divides along gender-partisan lines i.e. in favour of a generalised post-separation mother’s, or father’s, view. Most reports by-pass scientific-objectivity for the vested interests of authors and/or their sponsors, on different sides of the debate. However, it is more or less agreed, across a wide-body of astute research, that harm is done to children who have insufficient parenting with both biological parents. Scientific reports also concur on the type of harm that most often happens, which includes: 

  • A higher risk of the child abusing drugs and/or alcohol.
  • A greater chance of experimenting with risky-sex, and in girls a greater prevalence of extramarital teenage-pregnancy.
  • Statistically lower than the norm grouping of educational performance.
  • Once grown-up, an increased occurrence of physical illness, or a more severe occurrence of genetically predisposed conditions, associated with an overactive stress response system. 
  • Greater than normal occurrence of mental disorders in later life.
  • Higher risk of being alienated from their own children in later life as well as higher risk of having relationship breakdowns themselves, including divorce or separation. 
  • Greater occurrence of unemployment than the norm, once adult.

What is in dispute between academics is the extent of harm caused by biological parental-separation, and how this harm can be mitigated. There are two main camps:

A. Mother centric advocates. These believe: 1) the harm, apart from being a risk and not a certainty, is not that great (and less than would accrue to children from remaining in high-conflict families) and 2) the harm can be mitigated by a) parenting by the prime carer of a child, (nearly always the mother), and b) a minimal amount of quality-contact with the other parent. The level of this latter contact needed is said to be between 0-7% of the child’s time in high-conflict separations or divorces, where zero means indirect contact alone, to a maximum of 23% in low-conflict situations (equivalent to every other weekend and half the school-holidays).

B. Shared-parenting supporters. These believe: 1) that the risk of harm is increased many fold by insufficient contact with either biological parent, whether the historical prime carer or not, and 2) only a sufficient parenting-time with a non-resident parent will alleviate this harm, where ‘sufficient time’ has been researched as being between 35-65% of a child’s non-educational time [Parenting time, parent conflict, parent-child relationships, and children’s physical health, W. V. Fabricius et al, Arizona State University, 2011; in particular page 43, figure 2: The relation between the amount of parenting time per month (4 weeks) students had with their fathers and the emotional security of their current relationships with their fathers].

Proponents of this class-action initiative are also ‘shared-parenting supporters,’ not only because of the research siding with this view, but from their own personal experience and from a common sense contention that the ‘mother centric’ view is simply untenable, and sexist. 

Another report from the Dept. of Works & Pensions ‘Parent Conflict Indicator,’ [22ndMarch, 2018] estimates that 48% of separated children in the UK, or 1.77 Million children, (by combining with figures in the report on Estimates of the Separated Family Population Experimental Statistics) have less than 7% of their time (i.e. contact once-a-fortnight) with their non-resident fathers. This equates to 1 in 7 of all children in the UK that the Government says are at risk of harm from not having enough parenting-time with their fathers. Estimates of children of separated families spending less than 30% of their time with a non-resident parent increases this ratio to 1 in 4 of all children in the UK (just over 3 million children) who proponents of this group litigation say are at high-risk of harm, now and in later life, as a result of having insufficient parenting-time with both their biological parents, following divorce or separation.

Notably, there is little research into the effects on estranged parents, (who are mostly fathers), forcibly denied adequate, or any, contact with their own children. This is mainly because Government Institutions believe they have no duty of care to these parents and that the effect on them is anyway self-evidently horrendous, lifelong and destructive.

The role of the Family Courts.

Critics of the need for change in the laws, policies and practices of the Family Court’s Child Arrangement Programme, have claimed that only a small (10%) of child arrangements in the UK, following divorce or separation, are handled by the Family Courts. That cases ending-up in Court involve extreme, high-conflict families, often involving domestic abuse. As such, the Court is right, it is argued, to use rough-justice that favours mothers, not least of all because there is no compromise possible.

It is possible to sort-out this untruth. 

An ONS report, ‘Divorces in England and Wales: 2017’ [Nicola Haines, 26th September, 2018], shows that in 2017, there were 101,055 divorces, and that half of these occurred in the first 10-years of marriage. If we assume all that half-of-divorces-occurring-in-the-first-10-years-of-marriage also had dependent children, this gives us a figure of 50,527 cases of divorces-with-children. 

The above ONS report also states there were 12.5 Million married couples in the UK in 2017, of which 4.9 Million had dependent children, i.e. 39% of the total. If we assume that the remaining divorces in the UK for 2017, were split between married couples with dependent-children and those without-dependent-children in the same proportion to the installed-base of married-couple-types, then this gives a further 19,705 divorce cases with dependent children (i.e. 50,527 * 0.39) in, 2017. 

If we assume the above report’s divorce rate, i.e. 0.8% per annum, also applies to relationship breakdowns in lone-parent and cohabitating-couples-with-dependent-children, (casting aside cultural nay-sayers who claim married families are more stable than any other type), and if we use the statistics presented in the ONS report, ‘Families and Households:2017’ [Emily Knipe, 8th November, 2017],that shows unmarried families represented 2/5th of all families-with-dependent-children in the UK, in 2017, (1/5th for each family type, lone or cohabitating), or 2.9 Million families, then we can add a further 24,360 more cases of separating-families-with-dependent -children per year to the total, bringing the estimate to 94,592 cases, for 2017.

Ministry of Justice (MoJ) report: ‘Family Court Statistics Quarterly, England and Wales, Annual 2017 including October to December 2017,’ [29th March, 2018], gives the number of child-arrangement cases handled by the Family Courts of England and Wales at just under 51,000. Without even adding in the statistics from the Scottish Family Courts, we can see that more than half of all child arrangements following divorce or separation in the UK are nowadays handled by the Family Courts. What is more, it is intuitively obvious that Court Ordered Child Arrangements are proliferated by social networks, and influence the outcome of self-made child arrangements as well. We are therefore driven to admit that the Family Courts dominate the way child arrangements after divorce or separation are handled in the entire of the United Kingdom. 

While statistics are hidden that would prove that UK Family Courts consistently use a Mother Centric view in their judgements, (and due to the confidentiality of Family Court cases the MOJ are the only body who could provide this proof), proponents of this class-action know of this bias from their own experience, from the experience of countless others in support groups for estranged parents (mostly fathers), and from the mouths of the judges themselves: 

The broad consensus of view [of judges] was, therefore, that care was best provided by Mum. The mother, therefore, held all the cards in the court proceedings. The absolute priority of the courts was to foster the best possible relationships for the child with both parents, but the rulings of the court rebounded badly on fathers. I would have to accept that the dice were all loaded against fathers.” [Quote from interview, in 2018, with Sir Mark Potter, former Head of Family Justice for England and Wales, (7th April, 2005, to 5th April, 2010). 

The case for Group Litigation/Collective Redress Action

It is clear from the huge volume of research reports, on the subject of harm to children from divorce, separation, and parent alienation that social-science research is never going to provide conclusive proof of the harm the UK Family Courts’ Mother Centric position is causing children and fathers en masse. In fact, many say if you have enough money you can get any report you want. 

It is also clear that lobbying for change in the UK has failed, despite it having worked elsewhere, most recently in Australia which now has shared-parenting instigated in law since 2006. In the UK, a 2006-2013 review of shared-parenting has been completed; one which involved: a Family Justice Review Committee, chaired by David Norgrove, a Ministerial Task Force on Childhood and the Family, chaired by Prime-Minister David Cameron, and a Bill Review Committee for the Children and Family Act 2014. All these institutions reconsidered the idea of shared-parenting being the default ruling in the Family Courts, and this motion was soundly defeated. 

A new approach is now needed. Winning a claim for compensation, for the harm done by inhumane and prejudicial Court orders, would not only recognize the wrong done to children and parent-victims of the Family Courts, a claim for compensation would shame and burden (by the potential volume of claimants) the UK State so as to make change inevitable – changes in court practices, laws, court rules or something else. 

The scale of potential compensation claims can be estimated. Of the many reports giving estimates of risk of harm to children of separation, the best indicate that 1 in 3 children who have insufficient contact with one biological parent will be significantly harmed (in one of the aforementioned ways) by the lack of shared-parenting. If we accept that 50% of all child arrangements after separation or divorce are formed in the Family Courts, then this means that 500,000 UK children per generation (or every 10 years) could claim compensation for the damage done to their lives by prejudicial Family Court practices. If we accept that the change in Court policy started in the 1990’s, i.e. with the introduced of the Children Act 1989, this means that there could be 1.5 million children in the UK eligible for compensation. 

An insignificant proportion of fathers/non-resident parents who attend Family Courts are happy with the orders they receive for child arrangements. In theory, all non-resident parents who have applied to the Family Courts for section 8 orders could be potential claimants, which is a further 1.5 million people. Within this population, there is a special group that I estimate to be about 220,000 strong: those that received ‘no contact orders’ from a Family Court, and who had no Criminal or Public Law case levied against them to support this order. These represent some of the strongest contenders to claim compensation for themselves, as well as for their children (where harm to those children can be linked to forced parental-separation). 

Claims for compensation will be difficult for child victims of the Family Courts who are now adults. They will need to prove that harm which came to them in their life was beyond-doubt caused by separation from one of their biological parents, and that the court which ordered limited or no contact with that parent had made a clearly unfair assessment. A mechanism for calculating compensation for this harm will also have to be proposed by these claimants. What is more it will have also to be argued that a duty of care for a child was not met by the Family Courts, the powers of local authority and the police, all three of which would be in clear disagreement with a father-child opinion. Further, a father of a child in question will need to demonstrate he took all possible steps (including civil litigation) to mitigate the harm to his child that the three institutions of care in the UK had missed. A claim for children as adults also introduces issues to do with time, the biggest being a statute of limitations in law, or one imposed by any type of Appeal Court rules. 

The most hopeful group-litigation case.

The compensation case for non-resident parents deprived of all contact with their children, i.e. who received a ‘no contact order,’ is far easier to scope and explain as a special case. ‘No contact’ orders, (when not backed by any criminal conviction relating to abuse in a family, or public law order, for child neglect), ­­­­mean that the main, resident parent (usually the mother) is given State endorsement of their desire to prevent all physical contact of their child with the other parent (usually the father). This leads to the inevitable de-bonding of a child with the estranged parent – and nearly always for life – a punishment as severe, if not more so, than anything available from criminal courts. These extreme orders are both child arrangement orders and “punishment orders against an estranged parent,” no different in their consequential loss of a personal life than criminal convictions. It should also be noted that there is no UK Family Law Act that specifically details the amount, or percentage, of time a child should spend with each biological parent following divorce or separation under different circumstances. 

Shortly after the end of WWII, the UK bound itself to a European Convention on Human Rights (ECHR). Although this Convention is not part of UK law this country has agreed at the highest levels to always follow the rulings of courts that adjudicate this law. 

‘No contact’ orders are wrong in principle when held against ECHR, arguably according to Articles 6-8: The Right to a Fair Trial, No Punishment without law, and the Right to respect for private and family life. For example, just dealing with Article 6, because ‘no contact’ is such a severe order, it is arguable that the UK has a duty of care to the recipient to ensure such orders are the product of a scrupulously fair trial process, similar to criminal convictions. Yet, in Family Courts, there is no use of juries, no requirement for both parties to be equally legally represented, no requirement to disclose or have any evidence, and there is no requirement for a Judge to ensure a contentions is proved beyond reasonable doubt. Further, fathers are denied access to public funds in private law Family Court cases, but mothers are not. 

Finally, claims for compensation by a father with a no-contact order has a mechanism for calculating compensation already within international law, as there are many case histories to draw from of fathers separated unjustly from their children, such as asylum seekers, who then were awarded claims of around £10,000 per month of wrongful-separation, per child. 

The entity who is being sued also needs to be considered. A claim for compensation for children or fathers who suffered unjust Family Court orders is always a claim against the Courts, and therefore likely to be some version of a High Court Appeal or Judicial Review. A claim by no-contact fathers is a claim against the Nation State of the UK. As such, a successful case would be impactful, outside of ‘the system’ (of courts and laws in the UK), and more likely, if successful, to generate substantial compensation. 

The role of the Doubtfire Fund

This fund seeks to support legal action, as agreed by pre-appointed legal experts, that both compensates victims of the UK Family Courts, but also brings about much needed change, for the benefit of all, in a society that is inexorably turning away from outdated, religion-based, models of a family. It is hoped the Mother Centric child arrangement policy of the UK Family Courts will eventually be consigned alongside other similar atrocities such as: deporting children to the Colonies, or racial segregation of Aboriginal children from their parents, all of which were the result of judges adhering to a culturally-corrupted version of the Paramountcy Principle for the supposed “best interests of the child.” 

In the future, it is hoped all children will have a guarantee of shared-parenting in families that may contain separated biological parents, but are also families that are seen as life-style choices, rather than failures to be dealt with at court. The Doubtfire Fund intends to raise funds to further this endeavour by giving to a designated charity (s), yet to be appointed. A phased-approach is advocated, starting with a legal opinion on the feasibility of different types of class-action, followed by a case-collection phase, and finishing with court action that might in the end be self-financing via a commission-taking law firm. 

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