A lot of parents (mostly dads) are unhappy with their experience in family court and the resulting judgment. As a full time McKenzie friend/lay adviser and lay advocate in UK family courts I can tell you that a lot of times one parent has a right to be perplexed as to how a decision was arrived at. Following a seemingly inexplicably arrived at judgment, a number of parents are in the catatonic state that Bishop Brennan was in after Father Ted kicked him ‘up the arse’ in this episode of Father Ted.
Accepting as I do that some decisions seem to be consistent with the facts presented , what about the rest, the majority of which see mother as the custodial parent following a welfare hearing?
These decision are made in my view as a result of largely non-legal influences. In Oliver Wendell Holmes’ ‘The Common Law’, (Amazon UK version here and Free Project Guttenberg text version here ) Holmes called these influences ‘inarticulate major premises’.
One of the inarticulate major premises that I believe is operative here is that mother is the best person to care for a child post separation and divorce. Worryingly even champions of dads like myself potentially hold that view. This may be heresy to some but I ask a simple question of each of you… ‘When was the last time you asked a male friend or relative where he and the kids where going to live after separation or divorce??? If you can say that’s a question you have never asked perhaps the inarticulate premise is alive and well in you as well? It certainly is within CAFCASS and others who report to the courts. If it is operative it needs challenged to see whether the premise is true or false. If false it should be abandoned, and consigned to the dustbin of legal history. If true the Welfare Checklist needs rewritten.
Probably one for a PhD thesis, but for now I am out of time and look forward to the retweets and comments to ensure this theory gets ‘out there’. Who knows, maybe our frenemies at the Ministry of Justice might run this post past some judges or comment in rebuttal?