17/03/02

New deal for divorced fathers 

Margarette Driscoll

The Sunday Times

It took Oliver Cyriax four years to gain access to his son. Margarette Driscoll hears how he is currently organising a revolution in family law

When Oliver Cyriax became embroiled in a legal battle with his former wife over access to his son he had two things in his favour. As a former lawyer he could represent himself in court. His second career, as the author of medical textbooks, reflected his facility with words and brought in royalties. Even so, it took 26 court cases before he achieved a decent amount of time with his son. In the first three years, by dint of perseverance, he pushed up the level of contact from one hour a week to three. After four years his son was allowed to stay overnight.

Now they enjoy the sort of time together that he believes they should have had in the first place; every other weekend, an evening on alternate weeks and part of the school holidays. There is happy evidence of the nine-year-old’s presence strewn around the house — a Harry Potter trivia quiz, a plastic fort under the kitchen table — and, strangely, since the arrangement was set in stone by the courts, his relationship with his former wife has improved. “I can even remember why I married her,” he says.

Cyriax’s case is remarkable only because of his extraordinary tenacity. Every year, about 110,000 such disputes reach the family courts, many of which drag on for years. Though the Children Act of 1989 was supposed to sweep away old notions of “custody” and “access” in favour of a new era of shared parenting, it hasn’t happened, a reality that is — belatedly — being recognised by the legal establishment.

Last month, in the wake of a report for the lord chancellor’s office, Making Contact Work, Dame Elizabeth Butler-Sloss, president of the family division, told The Sunday Times that since the Children Act came into being, shared parenting had been “thought out, but not sorted out”.

Thirty years ago, when she began sitting on the family bench, the mother was automatically assumed to be the central figure in a child’s life.

Now, she says: “I cannot emphasise enough how important both parents are.”

The importance of the mother and father in a child’s life is the guiding principle that has driven Cyriax through his legal battles and in advising more than 1,000 other fathers fighting in the courts for access to their children.

But unlike Butler-Sloss, he believes the only way to properly achieve shared parenting is for the legal establishment to set out a “norm” — something like the time he shares with his son now — so that ultimately only cases that have good reason to deviate from that should come before the courts.

“If it is regarded as normal for children to see their parents on alternate weekends,” he says, “normal families shouldn’t have to litigate for five years in the hope of one day attaining normal contact.”

New Approaches to Contact, the organisation he founded, is holding a conference in London next week to hammer out an agenda for change. Judges, solicitors and mediators are flying in from America and Australia to discuss how Britain might adapt procedures.

In Florida, clear guidelines are set down for “normal” contact, even down to timings. Weekend visits are from 6pm Friday to 6pm Sunday. The Christmas Day handover takes place at 4pm.

In California, a flow chart handed to separating parents tells them exactly what is expected of them and what they will have to consider in coming to an agreement. A mediator takes a proactive role in sorting things out. Court is a last, not first, resort. In Britain, as family law works on the principle that every case is different, there is no general information, no guideline and no expected outcome.

Across America, mediation and court welfare reports are undergone before a hearing starts. Here, courts order welfare reports, which, until recently, were carried out by untrained probation officers whose recommendations determined whether the non-resident parent had any access to the child.

This is the bit of the system that most angered Cyriax. In some cases, the fact that a couple were in court would be enough to recommend almost no contact. In the looking-glass world of the family courts, fathers can be prevented from seeing their children for the most trivial of reasons.

A child who falls asleep in the car is over-tired. One who doesn’t is over-hyped. Cyriax knows of a man who was not allowed to have his children because he cooked lumpy mashed potatoes.

Cyriax already had a daughter, Holly, now 17, from a previous marriage with whom he had maintained a loving relationship and, when it came to fighting to see his son, it was this that gave him confidence. He and Holly’s mother had remained on friendly terms and both recognised each other’s role in Holly’s life.

“A lot of men give up,” he says. “If it’s a first child they think, ‘Perhaps the officials are right, perhaps I can’t look after him or he’ll be better off without me.’ But because I had Holly I knew they were wrong. I knew I could be a good father.”

The level of unhappiness engendered by the family courts was evident in the correspondence that followed this paper’s recent interview with Butler-Sloss. One man wrote to say he had seen his daughter for just 15 minutes in six years. Another, that he had given up trying to see his children after repeated legal rebuffs. They are now in their twenties. “I do not know if they have children of their own,” he said.

A man about to return to court for the fifth time said the despair he felt when his wife unilaterally reduced the frequency of visits to his children from three times to once a week was profound. “I wept, and so did my sons,” he said.

Another was in the “surreal” position of being praised for his fathering ability by one judge (because of the care he had shown his stepchildren) while being banned from seeing his own children by another.

With one in three marriages ending in divorce, both the cost to the system and the emotional impact on families need to be lessened.

Dr Hamish Cameron, a consultant child psychiatrist, says the present system is very damaging. “Drawn out court cases are exhausting for the child, exhausting for the parents and exhausting for the legal system, and produce nothing but unhappiness. The harm it does to the child is very deep. Often it does not show in childhood but comes out in adulthood when they are trying to form bonds of their own.”

Reform of the family courts is inevitable, says Cyriax. “The government says ‘we believe in the family, it is wrong to walk away from the family’, but the particular basket into which they put family law has a hole in the bottom,” he says. “When it comes to the crunch the courts recognise the rights of one parent, not both.”

Butler-Sloss’s admission of how her thinking on shared parenting has “evolved” means change is filtering down from the top.

“There are some bright people in the lord chancellor’s department,” says Cyriax. “They realise the family courts shouldn’t stop children from seeing their parents merely because of divorce. Behind the facade, officials welcome the need for change.”