The Emperor's New Clothes : Divorce Process & Consequence

Chapter 1 : No Serious Inquiry on Evidence

Chapter 2 : Wives Placed Above the Law

Chapter 3 : Malpractices in the Interpretation of Matrimonial Law

STATUTE AND CASE LAW : DIVORCE AND ASSETS

Statute law on divorce and ancillary matters

Statute laws on divorce and asset distribution, explicitly specify that the conduct of the parties is relevant and is to be examined by the court.

The Matrimonial Causes Act 1973 gives the grounds for divorce, and directs the courts. Part I Section 1(3) states :

On a petition for divorce it shall be the duty of the court to inquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent.

The Matrimonial Causes Act 1973 Part I Section 25(2), as amended by the Matrimonial and Family Proceedings Act 1984 Part II Section 3 giving a revised Section 25 of the 1973 Act, in dealing with allocation of finances, states that :

the court shall in particular have regard to the following matters- (a) ... (b) ... (g) the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it.

The courts therefore have a duty to inquire into conduct for two separate reasons, within two separate sections, as defined by two separate Acts. Both of these sections are being ignored in many, if not most cases, to varying degrees.

Judicial corruption of the grounds for divorce

The interpretation of law in ‘unreasonable behaviour’ petitions has been corrupted. Parliament’s intentions were that the limit of unreasonable behaviour was for a court to decide. However the senior judges have decided that it is for the petitioner to determine, for their own purposes, what is unreasonable. Since then, trivial and spurious allegations have become commonplace. The ‘special procedure’ was introduced from 1977 to ‘rubber stamp’ the process. Petitioners are now advised that the allegations are unlikely to be investigated or defended, and that the ‘special procedure’ will be used to ‘rubber stamp’ the process. Statistics show that a large proportion of the increase in petitions is by wives using this ‘unreasonable behaviour’ process.

This amounts to the introduction, by a ‘back door’ process, of no-fault divorce on demand. The introduction was not debated by Parliament, and was done without any demand from the public, or even of their knowledge.

Current practice on divorce

More than half of the divorces instigated by wives now use the ‘unreasonable behaviour’ grounds, and the special procedure. In 1989 out of 151,204 divorces, only 280 were contested.

Judicial corruption of ancillary matters

Case law from 1973 onwards has established that conduct is largely irrelevant to financial outcomes. This case law commenced with a decision by the Court of Appeal in Wachtel v Wachtel [1973]1 A.E.R. 829 CA, which held that only "gross and obvious" conduct should be taken into account. Further details are given in Davis and Murch [2]. By the 1980s such practice was fully accepted by the courts.

Current practice in ancillary matters

The result now is that conduct is nearly always irrelevant to the allocation of assets. Only a very small proportion of petitions are contested, and the ‘special procedure’ is used to ‘rubber stamp’ the process. Perjury by the wife is condoned by the courts.

In 1992 about 72% of divorces were petitioned for by the woman, on the grounds of :

• 40% unreasonable behaviour i.e. 55% of women’s petitions;
• 16% adultery;
• 1% desertion;
• 12% 2 years separation;
• 3% 5 years separation.

In the vast majority of cases there is therefore no meaningful examination of the allegations made about the parties’ behaviour. This is contradictory to Parliament’s explicit intentions. Innocent parties are therefore not obtaining the defence they should have.

Many examples are available which illustrate that courts do not make satisfactory inspection of evidence and allegations made, e.g. on the grounds for divorce [p9.2] :

"I find it amazing that my wife has been granted a divorce and rehoused on her word only and it seems to me whatever I say is not believed and no-one wants to believe the man."

and on the investigation of claims generally [p8.2] :

"no questioning as to the validity of spurious claims represented in Court"

The judges responsible for ignoring statute law are clearly creating disrespect for themselves [p6.4.4] :

"I have a great deal more sympathy for the Birmingham and Guildford "bombers" since my dealings with the "kangaroo courts". Judges are people with power and no responsibility especially in closed Courts where they do just as the mood takes them."

Statute law on children’s issues

Parliament’s intentions with regard to separation and children are clearly stated in statute. The Children Act 1989 Section 1(1) gives the overriding principle :

When a court determines any question with respect to-

the upbringing of a child; or

…

the child’s welfare shall be the court’s paramount consideration.

Section 1(3), gives the basis on which a court shall determine residence and contact :

a court shall have regard in particular to -

(a) the ascertainable wishes and feelings of the child ...;

(b) his physical, emotional and educational needs;

(c) the likely effect of any change in his circumstances;

(d) his age, sex, background ...;

(e) any harm which he has suffered or is at risk of suffering;

(f) how capable each of his parents, ... is of meeting his needs;

(g) the range of powers available to the court under this Act in the proceedings in question.

The courts therefore have a duty to take these factors into consideration, and any allegations by a party about the other require to be investigated.

However, the courts have discretion, and in particular S.1(3)(g) gives the court great discretion to make any orders they wish. It is usually easy for a judge by manipulating the welfare principle with the S.1(3) factors to reach whatever conclusion he wishes.

There is no reference in the Children Act 1989 of the harmful effects on a child of a badly behaved mother, or to justice being served so far as the parents of the child is concerned.

Law Commission Report #172 [3] which introduced the Bill, states in paragraph 4.12, with regard to a child sharing considerable but not equal time with both parents, that :

It is a far more realistic description of the responsibilities involved in that sort of arrangement to make a residence order covering both parents rather than a residence order for one and a contact order for the other.

Parliamentary Reference Paper 89/5 [4] briefed MPs when the Bill was debated. This paper states, about shared residence, that :

… there is no reason to discourage it.

Hence Parliament in enacting section 11(4) of the Act, which allows for shared residence, intended that it should be used unless there were good reasons to the contrary.

Judicial corruption of children’s issues

Case law, starting with the case of Allen v. Allen in the Court of Appeal in 1948, [1948]2 A.E.R. 413 CA, had established that behaviour of the parties was largely irrelevant in children’s issues. Mr Allen had returned from the war, having been a POW during 1942-45, to find his wife living with another man. Mrs Allen had deserted him and committed adultery, yet gained care and control. Before the case of Allen, children’s custody, care and control was allocated with respect to the parties’ behaviour, but after that case behaviour was largely irrelevant to care and control and ultimately also became irrelevant to legal custody.

Case law after the Children Act 1989 has been determined following Department of Health guidelines. In the Department’s The Children Act 1989 - Guidance & Regulations (1991) [5] it is suggested that shared residence orders were unlikely to be common forms of orders. Case law now follows these guidelines [6], although the senior judiciary were always opposed to shared residence anyway.

Current practice in children’s issues

In only a small proportion, perhaps about 10%, of the 180,000 divorces per year (plus separations of cohabiting couples) is the residence of children contested. This is because most fathers are advised by their solicitors that they will not be successful. In cases which are contested, only a small proportion, again perhaps about 10%, of fathers obtain residence. Therefore fathers obtain residence in very few contested cases. It is usual that family assets and earned income are allocated to ensure that the children’s needs for a home, schooling, etc., are met, quite irrespective of the behaviour of the parties. Therefore the courts do not have regard for the parent who can best provide for the children, both physically in terms of assets, and educationally in terms of appropriate role models, as the welfare checklist of Children Act requires. The courts regularly confiscate and re-allocate life savings to the parent with residence, usually the mother.

For periodic maintenance there is no accounting or auditing of the use of the money. That is, the person paying maintenance has no way of ensuring that the payments are used for the benefit of the children. Some hundreds of millions of pounds per year of such funds are unaccounted for. There are no other known fundings of this size which are similarly unaccounted for.

Additionally, when a contact order is in place, contempt of court by a wife who obstructs access to children, is condoned. While children’s interests are supposed to be paramount, it is in reality only the wife’s interests which are protected.

Current practice is therefore contradictory to Parliament’s intentions on shared residence.

Very clear evidence is available in the case studies e.g. [maj4] :

"(b) The Court allowed Mrs F to put forward various claims / allegations / evidences about my putting the children’s welfare at risk in some way, without . . .

• telling me what these claims/allegations/evidences were

• giving me the opportunity to challenge these claims/allegations/evidences

• allowing me to put forward my own side of the case and present my own claims/allegations/evidences/witnesses."

and [p9.5] :

"At Christmas the Judge refused to hear the case as my ex-wife said I could see her [i.e. the child] whenever I want (near her home, on my own, if my wife was absent), although she has consistently ignored all letters requesting any/all contact. An order was made for contact "as agreed between us" – none has been."

Fathers who know that they are not listened to include [p6.5.6] :

"I then took it to Court – the Courts were totally incapable of resolving the matter, and actually made the situation worse by fixing minimum arrangements that were less than I had been normally getting – totally ignored my proof of the mother lying; totally ignored proof of wrong statements by the CWO. Totally ignored photos, letters, gifts from my daughter as evidence of her wishes to see me. The Family Court is totally inadequate for dealing with these matters."

Appropriate solicitor’s advice

Most divorces are instigated by the woman, most commonly on ‘unreasonable behaviour’ grounds, frequently reported as fabricated petitions i.e. that trivial and untrue statements are made. It is clearly important that untruths are not allowed to enter into the evidence during legal cases concerned with assets and children. It is also noted that a husband making such allegations about his wife finds that they are considered irrelevant to ancillary matters.

It is possible to negotiate and agree that one will not defend but that the allegations, e.g. on unreasonable behaviour, will not be made or used in the children’s or ancillary matters. Alternatively one can reserve one’s position, retaining the right to defend.

With regard to the allegations in a divorce petition, especially that of ‘unreasonable behaviour’, two courses of legal action must therefore be considered by a husband to defend himself :

a) that it is better to petition than be petitioned against, or at least to cross-petition e.g. on adultery or unreasonable behaviour;

b) to defend a fabricated ‘unreasonable behaviour’ petition, to prevent untruths becoming accepted in the evidence.

With regard to the children’s future, the courts often prefer to leave the ‘status quo’ i.e. to take no action in terms of making a court order, or to make an order that the situation should not change. Most mothers mis-use the children in these situations e.g. by taking them away from their home, so in practice, the ‘status quo’ implies continuing to reside with the mother. In fact the Children Act 1989, section 1(5), explicitly states that no order should be made by the court "unless it considers that doing so would be better for the child than making no order at all". Hence another legal action is needed to protect the children’s interests :

c) not to delay proceedings about the children, in order to prevent an adverse ‘status quo’ becoming established, and preferably to apply for residence before or immediately after the separation.

Therefore the most basic advice which must be given to a father facing divorce must include :

- (a) and (b) above - to prevent allegations being made and accepted in court which would be used against the father in the ancillary/financial relief proceedings on assets, and also possibly in proceedings about the children; and

- (c) above - to prevent an adverse ‘status quo’ coming into place with respect to the children.

Typical solicitor’s advice

It is frequently reported, that a solicitor’s advice to a husband is typified by expressions such as "not to act precipitately", and "not to rock the boat". The husband is usually advised not to defend a divorce petition, even when outrageous lies are told about him. He is often advised of the high cost of legal action, while he is often not legally aided. A wife is usually advised otherwise, and also is usually legally aided. However, legal aid is never granted to men to defend a divorce, and rarely to women, but is readily granted, subject to means, to petition.

With regard to the specific aspects, in (a), (b) and (c) above, the advice given very often omits these, and therefore is often contrary to that which should be given.

Many fathers change solicitors in an attempt to obtain correct advice. A number of fathers act for themselves as Litigants in Person rather than use any solicitor or barrister.

Inappropriate advice is very common e.g. [p9.5] :

"I was advised to give her everything to placate her. I now have a Legal Aid supported negligence case against the Solicitor who advised me"

and representation which is unequal to the wife’s [c6.8] :

"Little help from Solicitors, my ex’s seems particularly tough"

Disaffection with solicitors on both sides of the case is common e.g. p[6.1.3] :

"Solicitor for spouse

• continually lied to the Court;

• changed Court rulings (slip rule);

• had a contact in Court admin who warned him of any moves by our side;

• took matrimonial assets in exchange for services rather than payment of fees;

• repeatedly broke promises to my Solicitor;

• garnished my bank accounts for a non-existent debt (ex-parte application);

• sent bailiffs into my Solicitor’s offices to remove furniture for payment of non-existent debt (ex-parte application when I and my Solicitor were on holiday).

• …

• I intend to sue my lawyers."

Effects of solicitor’s advice

Almost all husbands entering divorce do so in ignorance and naivety about matrimonial law. With inappropriate advice they almost always find themselves as respondent, when they should be the petitioner in a divorce. Fathers are usually prevented from taking the legal steps necessary to gain the protection which statute law should provide for them and their children. This assumes of course that statute law were to be interpreted correctly by the courts, which as we describe elsewhere, is not done.

Appropriate barrister’s advocacy

A barrister has greater specialist knowledge of statute and case law than a solicitor and client. He/she has a duty to remind the court about, and should draw the judge’s attention to, statute and case law.

It is a barrister’s duty to advise the solicitor and client of the details of the law which they need to address. A barrister must also correct a judge, should a judge ignore statute law and Parliament’s intentions in his or her deliberations or judgement. It is also a barrister’s duty to attempt to correct negligence and delay on the part of a solicitor, so that the client has the full protection of the law. It is also a barrister’s duty to defend his client’s interests to the utmost.

Typical barrister’s advocacy

It is commonly reported within the father’s groups that barristers fail to act as they should i.e. to address the aspects identified above. It is rare for a barrister to correct a judge when statute is ignored. It is noted that a major career progression path for a barrister is to an appointment as a judge. Many barristers ditch their clients by not fighting hard enough, or simply throwing in the towel.

Effects of barrister’s advocacy

It is the barrister who is the father’s last defence when the father is ignorant and naive, and when the solicitor has not given appropriate advice, and when a judge ignores statute. Barristers are therefore not, in the majority of cases, protecting the interests of fathers as they should.

Examples from the case studies include [p6.2.1] :

"I sent a formal complaint about my counsel and her professional conduct to the Executive Secretary of the Professional Conduct Committee, General Council of the Bar."

and [p6.2.2] :

"The Judges are biased and generally go along with the adversarial Barristers in the game show of the Court room where each Barrister is only interested in outdoing the other Barrister."

and [maj4] :

"Discussions prior to hearing of 10/02/95. Complaint 2.5 describes some "negotiations" that took place prior to this hearing. These "negotiations" involved Mrs F’s Barrister and Solicitor trying to pressure me into agreeing to arrangements which were very much in Mrs F’s favour, but which had very little to do with the best interests of the children."

and [min10] :

"But, the Judge was useless and failed to understand the whole picture. Almost, even worse, was my Barrister."

The CWO’s role

A CWO is appointed by the court in contested residence and contact cases, usually at a directions hearing. The CWO’s role is to collect evidence about both sides of the case, and to submit the findings to the court in a written report. The CWO should address the welfare checklist, section 1(3) of the Children Act 1989, and usually makes a recommendation. Any recommendation made is invariably the opinion of one person only i.e. the CWO.

Cases of deliberate obstruction of a father seeing his child(ren) are regularly reported, but the court welfare service appear not to recognise this as a cause for concern. Cases of Parental Alienation Syndrome are common, and a book [12] of the same name gives background to the causes of this.

There is clear evidence in correspondence from the National Association of Probation Officers (NAPO), the professional body of CWOs, to Families Need Fathers, of obvious anti-male bias [13]. Further however, the professional body of CWOs, the National Association of Probation Officers, has an ‘anti-sexism’ policy [21], introduced in 1996 but presumably based on what had been normal practice for some years. The policy describes the "experience of oppression of women in separating families" and the "discrimination against women in contested residence and contact decisions". This policy in supporting only mothers, and ignoring the rights of fathers and their children, is clearly intended to subvert the principles in the written law of the Children Act 1989. In the 15-page policy document the welfare of fathers and their children is never mentioned once. But further, NAPO has declared [22] that the policy "is a members’ document and therefore is not available for sale or for wide circulation to non-members" i.e. it is a secret policy not to be known to the public.

We present in annex 4 a full critique of the policy, as well as a record of the responses, and lack of response, which the Cheltenham Group obtained from the responsible authorities who were asked to remedy this issue.

Typical CWO’s reports

It is very commonly reported throughout the father’s groups that very significant bias occurs, with leading questions asked, and misrepresented and unbalanced information given in reports. We only have space to give examples from the many available.

For example, in giving information about one issue, such as a party’s employment, then the same information about both parties should be given to meet the needs of the welfare checklist. This is very often not done. Instances have been reported of blatant untruths, in which the CWO has not reported his/her findings.

Unprofessional statements are reported which have no relevance to the welfare checklist. For instance :

Mr X made it plain to me he thinks that marital break up, but of course his in particular is absolutely unacceptable

when such a statement is insulting to the individual and entirely irrelevant to the case, and amounts to a gratuitous insult.

Unethical statements have been reported. For instance, in a report prepared following an application for shared residence by a father :

I suggest split residency could possibly work given close co-operation between parents, combined with resilient children. But neither apply in this case so I could certainly not support Mr X’s application.

This statement must be analysed. The welfare officer is saying he doesn’t support Mr X’s application for shared residence because Mrs X won’t co-operate. But it is only because Mrs X will not co-operate that Mr X has been obliged to apply to court, and hence the welfare officer has been asked to produce a report. Effectively the CWO is saying that Mr X cannot have the protection which Parliament has defined, because Mrs X doesn’t want him to have it. It is for a judge to decide the issue based on statute law and evidence. It is not for a CWO to recommend this important decision based on utter nonsense such as this.

In comparison to this case, when a father is similarly unco-operative, the law will still accommodate the mother rather than him, even to the point of imposing a jail sentence for contempt.

Effect of CWO’s reports

It is unusual for a judge to override a CWO’s findings. The effect is to give complete priority to the mother, no matter what her behaviour.

It is clear that the children’s objective needs, as defined by the welfare checklist, are in many cases not being addressed. The children’s interests are not therefore, in any objective way, treated as paramount.

Examples of CWOs who take the side of the mother, and completely ignore the father’s and children’s rights include [p6.3.2] :

"After 11 months of CWO reports and Solicitors and three brief contact sessions at the CW office, the second report said "I see no point pursuing the question of contact at this stage as Ms S is completely opposed to it". At this point I gave up. Again completely the wrong thing to do. But I didn’t know what to do – and worse still neither did my Solicitor."

It is questionable whether the solicitor did in fact know, or did not wish to help. This father continues to give us specific details of the CWO’s practice :

"… My CWO was a bit of a star. She was a middle-aged hippy with no children. Her husband was a teacher and so she had very little experience of real life. My mum and dad made an application for grandparent access – she said to my dad "what on earth could you have in common with a 15-year old girl?" (my little sister). I don’t know – what does a father have in common with his daughter? some DNA? Both of my parents wrote to her after their meeting, shocked at her attitude and she wrote back saying "I distinctly remember saying it would have been preferable if Ms S had sought a change to the preliminary order rather than just break it" – neither of my parents remember her saying that. When I told her I cycled to work to leave her with the car – she looked at me as if to say "you cheapskate – you should have had a car each". The classic quote is the one in the questionnaire "No-one paid their poll tax in Stroud – they were making a cultural statement." Is it not possible for FNF to keep a database of CWOs and their biases so members could be prepared when meeting them?"

Another example is [p6.3.4] :

"Court Welfare Officers (original one, and later one and later one when I took proceedings to restore access when refused) were disgusting vermin. Both were Roman Catholic spinsters and showed obvious bias on religious grounds – this could work in any direction of course – and were personal friends of one another. Both made it very clear they were interested in the interests of themselves and their department (H Probation and After-care Service) and nothing else at all. Reports were factually inaccurate and could not be challenged by cross-examination, etc in Court."

A number of fathers have addressed these problems through the complaints procedures of the Welfare/Probation Service in their area. For example [p6.2.1] :

"During this time, Counsel advised me not to appeal, so I went through the full complaints procedure about the Family Court Welfare Officer and his report, until eventually the Chief Probation Officer advised me to go back to Court."

There is usually no remedy against CWOs malpractices [p6.3.1] :

"However, my experience of the Court Welfare Officer is very bad. He was very sexist, biased and lied in his report. This forced me to withdraw proceedings to seek custody of my daughter. This particular report gave my ex ammunition to block all contact and I have not seen my daughter for two years. I have complained vigorously to various Bodies re the CWO. I have received an apology from the Regional Director from Probation Service. He expressed deep regret, but this is no use as the damage is done."

As judges rarely overturn the findings or recommendations in a welfare report, fathers must rely on the integrity of the CWO. This father seemed to know this, and was so demoralised that he even thought that the judge could do nothing about an untruthful report [6.3.3] :

"I was confident of obtaining "custody" of both children because I had spent probably more time than her in bringing them up. The Welfare Officers disagreed and were prepared to lie and distort the truth in order to destroy my case. Judge B’s hands were tied by the Welfare Report but gave me considerable contact and imposed a movement restriction on my ex-wife of living within six miles of children’s existing school."

FAMILY MEDIATION SERVICE

The Family Mediation Service is staffed mainly by women with blatant anti-male attitudes and actions. This is evidenced by reports from the father’s groups. Many fathers report that the Service has been of no benefit to them or their children.

Usual legal aid practice

It is most often the case that a wife will be granted legal aid, while a husband will not. This occurs even in cases in which the wife earns considerable sums, in many cases comparable to, or more than, the husband.

This means that a husband knows that he is using his earned income to contest issues, while the wife is assisted by the state. He also knows that the costs will damage his ability to provide for his children.

Some legal aid is made available, to be repaid from family assets. The husband often knows that his life savings are being used to destroy his family, cut him off from his children, and relieve him of other assets.

Costs may be, and are, awarded against a husband in many cases e.g. if he should apply to the court a second time.

Effect of costs

A significant number of husbands have dismissed solicitors and barristers, especially after they have experienced the malpractices described above, and act for themselves as ‘litigants in person’. The effect of this is that they are at a disadvantage to a legally aided wife, who continues to use lawyers. In legal terms there is then no ‘equality of arms’ between the two sides in a case.

The stress of acting for oneself is considerable. This, and the costs, and the timescales over which proceedings may be ongoing, in many cases years, often result in a husband giving up his case against overwhelming difficulties.

Further information is given in The Cheltenham Group’s submission to the Woolf Inquiry [7].

A lack of equality in legal abilities shows in many cases e.g. [maj1] :

"Appeal for Legal Aid dismissed. (My wife had Legal Aid both for residence/contact and the defence of the divorce. Not only that, it was not only a Barrister that represented her, but a QC on both occasions. I had a Barrister for the residence/contact and I had to represent myself in the defence of the divorce.)"

and [c6.7] :

"I had to pay all my own legal fees – ex-wife received Legal Aid."

Inappropriate representation from solicitors, who apply for legal aid on behalf of their clients, appears in [p6.1.4] :

"At no time was I offered Legal Aid. I had since been told that I and my wife were entitled to it as everything was in contention. When the ancillary proceedings stated I received totally inadequate advice from my Solicitor, and when I found it difficult to pay him, he refused further help. In fact he refused to come to the ancillary proceedings. I lost my business and almost all my money – shares, insurances, etc.

I am now trying to find out whether I could possibly sue the second Solicitor for negligent conduct of my case."

The reality of the costs required to defend a position without legal aid is described in many cases, e.g. [p5.4] :

"She has been legally aided throughout. It has cost me £3,000 to date and I expect it to rise to £6,000"

and [p5.2] :

"Legal Aid bills involving leading counsel were over £300,000 for my ex-wife."

Some try to avoid the legal costs to save family assets e.g. [p5.3] :

"My wife and I are now trying to agree matters between ourselves rather than go through the Courts which will probably cost £20–30k."

Standard hearings practice

Most matrimonial cases, in courts below the Court of Appeal (CA), are held ‘in chambers’. The few exceptions are :

defended divorces and judicial separations;

S.17 MNPA 1882 cases in County Court, but not in High Court.

The expression ‘in chambers’ implies that the press and public, even close relatives of the parties, are excluded. The hearings are held in secret behind closed doors. The vast majority of matrimonial law cases never reach the Court of Appeal, and so few cases are held in open court.

A significant number of hearings are held and court orders made without the presence of fathers. That is, they are not informed that the hearing is to take place, and so cannot defend the action. This applies even when very serious issues are involved such as denied contact and exclusion from the home. These ‘ex parte’ orders could be set aside on subsequent application of the father, but by then irreversible damage has often been done.

Opinion

Lord Denning is quoted [8] as stating :

Every court should be open to every subject of the Queen. I think it is one of the essentials of justice being done in the community. Every judge, in a sense, is on trial to see that he does his job properly.

as well as :

It is of first importance that all proceedings should be held in public and this includes the delivery of judgements together with the reasons for them. This is so that everyone who wishes to do so can come into court and hear what takes place; and also that the reported cases can be taken down by reporters for their own use ... reporters are there, representing the public, to see that magistrates and judges behave themselves. Children’s courts should also be open. Names should be kept out but the public should know what happens to the child and proceedings should never be conducted behind closed doors.

Mrs Justice Booth, a High Court Judge, has commented in a speech published in 1987, that ‘in chambers’ hearings were causing "lax and sloppy" advocacy [9] :

The fact that so much of what we do takes place behind closed doors may now be having a marked effect on the professional approach of solicitors, barristers and judges alike. I do not see that effect as being beneficial. Everything is in danger of becoming too cosy and too informal and we are forgetting that we are lawyers. We do not have the Press or the public or even members or our own profession there to keep us up to the mark.

She went on to say that the exclusion of the law reporter was a

serious loss to the profession as a whole. A reporter has to be there, working in the courts, to know what the profession needs and there should be no restriction upon his or her coming and going freely whether or not the court is in chambers.

Effect of secret hearings

Lord Denning’s opinion is currently ignored. The effect of secret hearings is that the malpractices described in this paper have been allowed to continue, and no public or Parliamentary scrutiny has taken place.

The secrecy of hearings is obvious to all, and causes great concern, e.g. [p8.2] :

"Concerns regarding the law: … secrecy of the Courts;"

Hearings without the husband even knowing, and of course being unable to defend himself, include [maj10] :

"only to discover H H Justice H has done an ex-parte hearing with G on 3 January 1995"

Hearings which exclude the husband, but which have serious issues, in terms of allegations made, include [maj4] :

"The Court granted Mrs F an ex-parte hearing (ie I was not invited to it), despite the fact that I was available to attend it, and also despite the fact that it was likely to involve Mrs F making a number of serious allegations against me"

and others in which serious matters are to be decided include [p4.5] :

"I left the home on 11th June after realising I was being set up by my spouse, to give her a reason for an injunction. My daughter, A, came with me. A day after I received an Ex-parte not to assault/molest/interfere with the petitioner, with power of arrest attached."

The resentment felt by many fathers who are the victims of these practices shows very clearly e.g. [p9.6] :

"The secrecy of the wardship proceedings, the fact not one single piece of written allegation against me was made (my file at the registry is "blank" – literally) and the case with which your system allows a lawful, loving father to be secretly, woundingly accused of ills, abduction, etc are symptomatic of a sick, corrupt system of stupid laws, bad Judges, inflammatory lawyers and parasitic welfare "experts", psychologists, etc"

OVERVIEW OF MIS-INTERPRETATION

Husbands and fathers, in the majority of cases, have no protection under matrimonial law. Typical cases may be described in terms of the legal steps usually involved :

• obtaining legal advice and representation : advice on the law and appropriate legal actions, are not available in practice;

• give instructions to lawyers : this cannot be done without competent advice;

• application to court : most husbands and fathers find themselves ineffectively defending as respondents, when many should rather be applying as petitioners;

• evidence collected and submitted is not tested by the court : a wife’s perjured statements are condoned by the court, and vastly inaccurate welfare reports are accepted from court welfare officers;

• Court Welfare Officers : do not provide accurate information, and operate under a secret subversive policy;

• court hearing : the legal issues are decided on the basis that statute law is to be ignored, and fabricated evidence is to be accepted.

The statute law defined by Parliament, and the protection it provides for the individual, is not available to most fathers and their children, because of the malpractices of solicitors, barristers, judges and court welfare officers.

Each of these several types of malpractice is endemic in the system. Each malpractice may be considered to remove a significant component from the process which should protect the rights which husbands and fathers expect. The cumulative effect is to substantively remove most of their rights.

Costs are also an inhibiting factor, with most women legally aided and most men not aided. Time is also inhibiting, as many cases involve court action over a period of a few years. Many men in full-time employment give up their cases because of the stress, and the costs and time required. In addition, ‘ex parte’ hearings contribute to the defencelessness of husbands.

The secrecy of ‘in chambers’ hearings has prevented any public or Parliamentary scrutiny of these issues.

It is also clear that, in practice, we have a no-fault divorce system [p8.2] :

"My ex-wife, as respondent, used every opportunity to advance her material gain. This involved manipulation, threats and tears, lies, deceit and prevarication … secrecy of the Courts … no questioning as to the validity of spurious claims represented in Court … sham of no fault divorce"

ATTEMPTED REMEDIES TO MALPRACTICES

Cases have been taken, by individuals, about the malpractices in their case, to the responsible agencies. There is usually no resolution. Example are :

• to the Solicitors Complaints Bureau and Solicitors Indemnity Fund about solicitors;

• to the General Council of the Bar about barristers;

• to the Legal Services Ombudsman about solicitors;

• to the Area Probation Committee about Court Welfare Officers;

• to the Lord Chancellor’s Department about judges;

• in criminal proceedings, about perjury in divorce petitions;

• to the European Commission of Human Rights, Strasbourg, about Human Rights violations.

An appeal to a higher court is usually avoided due to the cost, time and stress involved. A typical application to court may cost several hundred to a few thousands of pounds. A transcript of a hearing will cost hundreds of pounds. Such figures are prohibitive for a person already faced with the loss of most of his assets.

Evidence is available of deliberate obstruction in the processing of complaints. A number of fathers had made applications, to the responsible bodies, for remedy of the malpractices in their case. Few have obtained any remedy.

A major project launched on 10 November 1996 by the Cheltenham Group, was to place before all the bodies responsible for the correct interpretation of the law, information about the NAPO ‘anti-sexism’ policy. These bodies were :

• HM Inspectorate of Probation (HMiP), who referred the matter to :

• Probation Unit, Home Office (PUHO)

• The Lord Chancellor’s Dept (LC’s Dept)
• The Law Society (LS)
• The General Council of the Bar (BC), who referred the matter to :

• Family Law Bar Association (FLBA)

• Equal Opportunities Commission (EOC), who have requested a meeting with :

• National Association of Probation Officers (NAPO)

At the time of writing the present 2^nd edition of this report, HM Inspectorate of Probation, the Law Society, and the General Council of the Bar had refused to accept any responsibility whatever; the Lord Chancellor’s Dept had not, 3 months later, even acknowledged our submission; and the Equal Opportunities Commission were being evasive. A full report of the status of this in March 1998 is given in annex 4.

Some individuals had made a number of separate complaints, including that of a father who had reported all of the malpractices in his case to the European Commission of Human Rights (ECHR), Strasbourg, within an application against the United Kingdom for Human Rights violations, as well as to his MP [maj9] :

"Most aspects were raised with my MP, who passed on questions to the Lord Chancellor’s Dept. and others. The replies were standard, usually to obtain legal advice and to appeal. There were no other routes beyond those I had taken, and so no remedies to the malpractices I had been subjected to. …

In attempting resolutions to these problems, I had come up against dead ends. The questions asked had never been answered, and reasons for my complaint or my case being turned down were never given. That itself speaks volumes about the situation. …

An application was prepared [to ECHR, Strasbourg] which quoted 9 articles in the Convention, giving evidence and argument about violations of those articles. These included the right to a fair hearing, respect for family life, sex discrimination, freedom to enjoy one’s possessions, and freedom of speech.

The application was declared ‘inadmissible’ because no violations of the convention had been found by the judges. Rule of Procedure 52(2) of the Commission states that reasons will be given for a decision. No reasons were given. Subsequent requests for reasons were blatantly ignored, and the matter has been taken up with others in Europe."

Financial accountability

It is noted that matrimonial law has no requirement that monies for child maintenance are to be accounted for. A father making such maintenance has no means of knowing if the monies are spent appropriately, and hence no control over his own earnings.

ROLES OF OTHERS WHO CONTRIBUTE TO THE PRESENT SITUATION

Regular reports occur within the father’s groups of the role of the police in cases. It is usual for the police to take the woman’s side, even when no evidence has been investigated about the reality of the situation in which the police are involved. Expelling a husband from his home, or separating him from his children, are regularly practiced by the police.

To give one example : on Wednesday 15 May 1996, that is during the preparation of this book, one of the authors received a phone call from a father whose initials are RH. Mr RH reported that he had been having problems with a badly behaved wife. She had been at work, using the family car, and Mr RH had been looking after his two young children, aged 3 and 5. His wife returned late on Sunday evening 12 May 1996, accompanied by two police officers. The children were already in bed. One of the officers apologised to Mr RH and told him that his wife was going to leave him, and that she had called to collect the children. The officer explained that he and his colleague were there to prevent a breach of the peace. Mr RH was kept in a room while his wife took the children from their beds to an unknown location, assisted and escorted by the police. The police also told Mr RH that he would get his car back, while they had no assurance of this : they had therefore told untruths about this, and had assisted with the theft of the vehicle. A few days later, on Wednesday 15 May when Mr RH contacted the author, he was already on valium as prescribed by his family doctor. He had contacted social services who simply abused him, and despite knowing, refused to tell him the whereabouts of his children. The police had acted on only the word of this woman. This incident is described in Mr RH’s own words in one of the ‘personal contact’ case studies [min16]. This case study was written by the father in a distressed state, and made available on Saturday 25 May, less than two weeks after the incident.

To give another example about the behaviour of the police and the prison service : we can relate the case, during 1994, of a father, whose initials are KM. Mr KM is a Petty Officer in the Royal Navy. Mr KM’s wife had thrown him out of his home, moved another man into that home, and cut Mr KM off from his three children. His wife, from a wealthy family, had obtained an injunction that Mr KM should not go near her home. Under this most extreme duress, Mr KM had been pushed beyond the limit, and found himself in contempt of court. He was jailed for contempt. His wife started to move around the country in an unpredictable way, placing the children in three schools within as many months. While in prison Mr KM was moved to another establishment, this being a regular occurrence for prisoners. The new prison was, unknown to him, near to his wife’s most recent home. When his wife learned of this, she contacted the police, presumably expressing concern that her husband was near, even though, in prison, he was hardly a threat. Mr KM was unaware of this until a day or two later. The prison officers, without warning, collected him and his clothes from his cell. They took him immediately by van to a prison more that 100 miles away. It was to be some days later before Mr KM learned the reason for his sudden move. The police and prison officers had taken this action on only the word of this woman.

Both of these cases were reported first hand, by the fathers, to the same author. The cases illustrate that it takes only one woman’s uncorroborated word to unleash the full force of the state against an innocent man.

The cases are directly comparable, and are very reminiscent of, the type of activity which was commonly used in Germany, during the 1930s and 1940s, against innocent Jews.

The role of the judiciary

The role of the judiciary in the corruption of Parliament’s statute law is clearly recognised by some of the senior judiciary, and yet has been allowed to take place and to continue.

Sir Robin Dunn, a previous Lord Justice during 1980-84, in his memoirs [16], gives clear evidence for this. With reference to LJ Ormrod’s ‘reforms’ of 1973 :

Roger [Ormrod] boldly announced, as was the fact, that in almost all cases both parties were to blame, usually in approximately equal shares … Matrimonial conduct could be ignored …As the years passed many began to say that the pendulum of reform had swung too far in favour of wives; … He [LJ Ormrod] was not sympathetic to husbands who maintained that they could bring up their children as well as their wives, saying that such men usually either neglected their children or gave up their jobs and become so engrossed in the children that they grew up in an unnatural environment.

Sir Robin Dunn does not give the evidence that LJ Ormrod used to justify his sweeping opinions, nor does he stop to consider for a moment whether the public or Parliament would consider Ormrod’s ‘reforms’ as acceptable.

The major issue of conduct in matrimonial law however is whether either of the parties has gone beyond what would be considered, by most people, to be unacceptable e.g. adultery or other serious behaviour, rather that whether both had some history of ‘conduct’. The law exists to moderate the public’s conduct and to support marriage, and not to condone any conduct. The law should certainly not reward bad conduct as it currently does to women. Sir Robin Dunn does not appear to mention such matters.

However, the effect of the changes in the law are also recognised :

This was the state of the law thirty years ago. The whole procedure was undignified and humiliating, especially to women. Divorce was made so difficult and the social consequences to the parties so unpleasant that people tended to make the most of their marriage and stay together. After the reforms of the law the divorce rate increased dramatically and society embarked on a regime of serial polygamy. I do not know which option was worse.

Sir Robin Dunn appears ignorant of the massive injustices currently occurring against men, and of the damage to children, and that women are the only beneficiaries of the current situation. He does not even mention the issue of justice in this context.

As Sir Frederick Lawton has said with respect to the 1973 ‘reforms’ in his review [17] of Dunn’s book :

Some judges in the Court of Appeal thought this amounted to rewriting the statute. They never got a chance to adjudge that to be so, as appeals from the Family Division were nearly always heard by a court presided over by Lord Justice Ormrod, who refused to regard the Family Division as a court of morals. For him, it was essentially concerned with the practical consequences of divorce.

The role of the Law Commission

Since 1967, Parliament has passed no less than 36 Acts that are central or at least related to matrimonial law. The Acts are :

• 1967 Matrimonial Homes Act
• 1968 Domestic and Appellate Proceedings (Restrictions of Publicity) Act
• 1969 Divorce Reform Act
• 1969 Family Law Reform Act
• 1969 Children and Young Persons Act
• 1970 Matrimonial Proceedings and Property Act
• 1971 Guardianship of Minors Act
• 1970 Law Reform (Miscellaneous Provisions) Act
• 1972 Maintenance Orders (Reciprocal Enforcement) Act
• 1973 Guardianship Act
• 1973 Domicile and Matrimonial Proceedings Act
• 1973 Matrimonial Causes Act
• 1975 Inheritance (Provision for Family and Dependants) Act
• 1975 Children Act
• 1976 Domestic Violence and Matrimonial Proceedings Act
• 1976 Legitimacy Act
• 1976 Adoption Act
• 1976 Civil Jurisdiction and Judgements Act (ss14, 15, 16, 72)
• 1978 Domestic Proceedings and Magistrates’ Courts Act
• 1980 Child Care Act
• 1981 Matrimonial Homes and Property Act
• 1982 Administration of Justice Act (s2)
• 1983 Matrimonial Homes Act
• 1984 Matrimonial and Family Proceedings Act
• 1984 Child Abduction Act
• 1985 Child Abduction and Custody Act
• 1985 Prohibition of Female Circumcision Act
• 1986 Family Law Act
• 1986 Children and Young Persons (Amendment) Act
• 1987 Family Law Reform Act
• 1988 Matrimonial Proceedings (Transfer) Act
• 1989 Children Act
• 1991 Maintenance Enforcement Act
• 1991 Child Support Act
• 1995 Marriage Act
• 1996 Family Law Act

The most infamous of these Acts is the Family Law Act 1996 which introduced into the written law ‘no-fault’ divorce, which had been introduced by stealth by illegal case law decisions and corrupt malpractices by lawyers.

Many of these Acts have been introduced at the instigation of the Law Commission. There is no information available to indicate that any of these Acts were introduced because of public request. Our MPs have seldom introduced such Acts themselves.

These Acts have therefore been introduced without any public or Parliamentary demand. In fact they have been introduced without the public even being aware of there existence, and still less aware, if that were possible, of the implications of these Acts for their own lives.

This raises the issue of the appropriateness of the mechanism to introduce new and amended laws in our country. There are serious questions regarding the process of the introduction of such laws, the public’s role, or rather lack of any role, and the accountability of those who instigate such reforms. Parliament has however, willingly taken its role in these reforms.

The majority of the public are entirely ignorant of these issues, and have never had the opportunity to study this area, despite the serious effects on their lives.

Divorce rate and the scale of the issue

If we use statistics from official sources e.g. Social Trends 26 [18], we may calculate some figures to illustrate the scale of these issues.

The matrimonial law statutes on divorce and ancillary matters, for England and Wales, which applied when the 1995 survey was conducted, were introduced in 1969. The divorce figures for England and Wales have risen from 25,584 in 1968 to 162,450 in 1978. The total UK divorce figure is 180,000 per year, with 96,400 cases involving children. In addition to these figures, we could add those for the separation of cohabiting couples, but shall restrict ourselves to those previously married.

About 72% of divorces are instigated by the wife, therefore taking 72% of the above figures, we have data that 129,600 husbands , of whom 69,400 have children, face the consequences of a divorce which they did not seek, and in which they were legally defenceless.

Statistics on mis-interpretation

Therefore approximately 129,600 husbands, of whom 69,400 have children, are divorced each year against their wishes. From the survey results we know that 87% are disillusioned with the legal process in some way. Therefore approximately 112,700 husbands are mistreated each year, of which 60,400 have children. This mistreatment implies that Parliament’s intentions are effectively being ignored in the majority of matrimonial cases coming before the courts.

Some statistical conclusions

Our enquiries with the UK government, have shown that little or no information is collected by government departments which would identify the scale of the malpractices we describe. This in part contributes to the government’s lack of ability to ensure correct interpretation of statute. Initial results of the survey were published in November 1995 [12], and the full analysis is given in the addenda.

It is clear from the large amount of anecdotal evidence, and the above statistics that in round figures there are about 112,700 husbands, including 60,400 fathers, and a greater number of children affected by the malpractices each year.

If we consider the period since the present laws were introduced, i.e. over the 20 years 1976-1995, we have that a total of approximately 2,254,000 men have had the fabric of their lives partially or largely destroyed.

A similar number of children’s lives have been adversely affected. These figures are very comparable with the figure of more than 3,000,000 children currently being raised outside of normal families.

Based on a male population of one-half of 56,000,000 i.e. 28,000,000, we therefore have, over the 20-year period about 7.1% of the male population affected.

Basic conclusions

Prior to 1948 a husband and father had protection against an unscrupulous wife under matrimonial law. Since then he has had that protection eroded until it is now insignificant. Statute law and Parliament’s intentions no longer determine his case. Men who have done no substantive wrong are having their lives destroyed by the state, for no good reason, and are helpless to prevent this.

The malpractices described are endemic in the matrimonial law system; the statistics given confirm the scale of this situation. The lives of men, and their children, should be protected from the actions of unprincipled and unscrupulous woman. Instead of being protected, they are being subjected to, what is reasonably described as, systematic persecution.

Human Rights law

A study of International Human Rights Laws confirms that there are violations of :

• The European Convention on Human Rights;

• The UN International Covenant on Civil and Political Rights;

• and The UN Convention on the Rights of the Child;

occurring in large numbers every year.

A study of the European Convention on Human Rights indicates that violations are occurring under article 6 (fair hearing), article 8 (respect for family life), article 14 (sex discrimination), article 1 of Protocol 1 (enjoyment of possessions), and article 5 of Protocol 7 (equality of rights and responsibilities of spouses during marriage and at its dissolution). It is to be noted that Protocol 7 is not currently ratified by the United Kingdom.

The UN International Covenant on Civil and Political Rights was ratified by the United Kingdom in 1966. Article 23 Clause 4, requires "States Parties ... shall take appropriate steps ... to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution". There are violations of this equality by the United Kingdom in most cases of dissolution of marriage. The United Kingdom has one of the highest divorce rates in Europe, with most divorces instigated by the wife, while the husband has less than equal rights. The remedies which should be available are being obstructed, and therefore the United Kingdom has not taken appropriate steps to ensure this equality, and therefore has not implemented Article 23 Clause 4.

The available statistics demonstrate how widespread these violations are. In the terms used in the UN’s human rights documentation, under the "1503" procedure, there is a "consistent pattern of violations".

A study of other international laws, such as the UN Convention on the Rights of the Child, shows that they are also compromised by the UK.

It is known that at least five individual applications have been made against the UK to the European Commission/Court of Human Rights. In all known cases, the application has been dismissed, i.e. technically ‘not admissable’, and no reasons have been given despite specific requests for reasons. The European Commission’s own Rules of Procedure require, under Rule 52(2), that any decision shall be accompanied or followed by reasons. The Commission is therefore in violation of its own Rules of Procedure on this issue. In addition, the Cheltenham Group has made a submission to the United Nations Human Rights Committee in Geneva [11].

Implications for the layman

The statutes of matrimonial law are not currently followed by the courts. Therefore, anyone wishing to know the law which would apply to his marriage and children is not readily able to obtain this information. He is not even able, in many cases, to obtain such information from a solicitor. Further, the law is capable of being changed by case law at any time. Therefore, even the layman who has studied statute and case law in his youth, may find that his/her knowledge is outdated when, perhaps 10-20 years later, he has recourse to law.

Revisions to matrimonial law should not operate retrospectively. The individual should know his rights and responsibilities within the family.

Given the fundamental importance of the family to society, these matters represent a degenerate state for any society to be in.

Constitutional issues

Judges are dealing with matrimonial law cases in such a way that :

• Parliament’s intentions are ignored;

• the individual’s rights and responsibilities may be varied at any time, without his approval, and without the public’s or Parliament’s approval.

It is clear that the judges responsible for the interpretation of matrimonial law will be required to be brought under Parliament’s control. Also, the amount of discretion allowed to the judge will require to be strictly limited. Fundamental aspects of the case, i.e. finance and children, should not be within any judge’s discretion, other than those aspects specifically defined by Parliament.

Interpretation of law

The agencies responsible for the correction of malpractices, in the interpretation of law, are ignoring the individual issue in the individual case. A public inquiry, which addresses the totality of the problems, is therefore required before resolutions to these problems will be achieved. Human Rights law requires to be invoked.

The layman and the law

In the future the layman will need to have written law which is not capable of being varied for the duration of his marriage and/or his parenthood. That is, the individual should divorce on the terms he accepted at the time of marriage. In addition, the written law must be readily accessible to the average layman who wishes to know his rights and responsibilities under matrimonial law.

Matrimonial law and the constitution

Constitutional law requires amendment, for example with a Bill of Rights, to prevent any further corruption, or any change to matrimonial law without the general public’s agreement.

In reading the case studies, and understanding the process and its consequences, it can be seen that many husbands and fathers are legally helpless in facing the destruction of major parts of their lives.

The behaviour of judges does not assist the situation. In fact one is left wondering what they think their role is in a court. To illustrate this, in an example of an application for access, a judge totally neglects his duty to enforce any. The note of judgement makes this clear : the judge "hopes" that the mother will assist with this, despite the fact that he knows that the father has been obliged to apply to court, clearly against the mothers wishes, as the action has been defended by the mother [min3] :

"This is an application by the father, Mr H, for access. …

I hope Mrs H will take to heart what has been said and genuinely encourage the resumption of a proper relationship between the father and the children. No doubt that this will cause her difficulties at first, but she professes high standards, and therefore may feel that she should try to alter her behaviour for the future. With a more tolerant attitude, she may encourage the re-establishment of a real relationship between father and children in the future.

Application dismissed. No order as to costs."

Inconsistent treatment between the sexes is regularly reported. Cases are available e.g. [min1] clearly showing that the status quo is not recognised when father has custody, when it usually is if mother already has custody.

Typical comments about the defencelessness are [c6.7] :

"Whole system biased and unfair to men."

and a sarcastic comment [p9.7] :

"Great British Justice, an example to the world."

The perceived attitude of MPs, and others who may be in a position to rectify the situation, is often commented on e.g. [c1.2] :

"My local MP, Tim Boswell (Tory), not at all interested either."

And the inability to get results is very commonly reported [min11] :

"The Home Office is now investigating why my original complaint was ignored."

To appreciate the depth of this defencelessness, the reader is referred to two cases with a fuller description of the treatment to which the individual was subjected during the legal processes. These cases are worth reading in their entirety to understand the depth of the problems faced. See the cases of the men under the pseudonyms ‘A R F’ [maj4] and ‘Mark Bradley’ [maj9].

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